Johansson v. Prince George's Cnty. Pub. Sch.

• Decision Date: 07 July 2014
• Docket Number: Civil Action No. DKC 13-2171
• Court: U.S. District Court — District of Maryland
• Parties: SHEILA JOHANSSON v. PRINCE GEORGE'S COUNTY PUBLIC SCHOOLS, et al.

SHEILA JOHANSSON v. PRINCE GEORGE'S COUNTY PUBLIC SCHOOLS, et al.

Civil Action No. DKC 13-2171

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

Dated: July 7, 2014

MEMORANDUM OPINION

Presently pending and ready for resolution in this disability discrimination case are the motions to dismiss filed by Defendant Prince George's County Public Schools ("PGCPS") (ECF No. 22), and Defendant Prince George's County Educators' Association (ECF No. 24). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motions to dismiss will be granted in part and denied in part.

I. Background

The following facts are set forth in the amended complaint. (ECF No. 21). Plaintiff was hired by PGCPS in 1993 as a Resource Teacher. She was employed by PGCPS through December 2012.¹ In 1996 she became a Crisis Intervention ResourceSpecialist in PGCPS's Crisis and Intervention Program. Her job was to provide conflict resolution services to students. This duty occasionally required her to restrain students physically. Starting in the first year of her PGCPS employment, she has continuously paid dues to PGCEA, a private non-profit corporation that serves as the union for teachers in PGCPS.

On October 1, 2010, Plaintiff collided with another teacher and fell on her knee, suffering a knee injury that resulted in a period of temporary total disability. On January 3, 2011, Plaintiff began part-time sedentary duty and returned to full duty work on February 7, 2011. Despite returning to full duty work, Plaintiff still suffered pain and discomfort in her knee as well as limitations on the strength of her leg and her mobility. She remained capable of restraining only smaller students; larger students would require assistance. As an accommodation, PGCPS provided Plaintiff an intervention partner to assist her with large children or with children she could not handle because of her knee issues.

On November 7, 2011, Plaintiff was told to intervene with a large child whom Plaintiff could not handle on her own. Her intervention partner was unavailable as she was in another areaof the school on another intervention. Brenda Hawkins, Plaintiff's supervisor, insisted that Plaintiff become physically involved with the large child. Plaintiff states that Ms. Hawkins knew she needed assistance to intervene. Ms. Hawkins informed Plaintiff that she should not be at work if she is unable to "do her job."

Plaintiff saw her doctor immediately after this incident and was told that she was no longer physically capable of restraining large students without assistance. The doctor completed the "Medical Inquiry Form to Support Accommodation." On November 18, 2011, Plaintiff submitted form A.P. 4172 seeking a reasonable accommodation from PGCPS for her continuing disability. According to Plaintiff, PGCPS never responded to this request. Plaintiff discussed her options with Ms. Wende Flagler, PGCPS's retirement counselor. Ms. Flagler could not offer any alternatives or solutions to Plaintiff.

On December 16, 2011, Plaintiff contacted Jamal Miller, her PGCEA union representative, in order to obtain information about a possible workplace accommodation or alternative job arrangements. Plaintiff repeatedly spoke with Mr. Miller about this issue. Plaintiff sent an email as recently as November 12, 2012, requesting that Mr. Miller inquire about a workplace accommodation for Plaintiff. According to Plaintiff, Mr. Miller told her multiple times that it was the position of PGCEA thatPGCPS was not required to accommodate her disability and that she should plan on retiring.

Sometime in August 2012, Ms. Gail Bentz, the principal of Plaintiff's school, expressed surprise that PGCPS would not accommodate Plaintiff and informed her that there was nothing she could do to assist Plaintiff directly. Plaintiff alleges that PGCPS did not attempt to reassign Plaintiff although they hired resource specialists to perform the same functions as Plaintiff without requiring the specialist physically to restrain students. In the last two years, at least three such positions have been posted by PGCPS.

Plaintiff alleges that PGCPS refused to allow Plaintiff to use all of her sick leave because her doctor had determined that she was disabled. This denial left Plaintiff without any source of income unless she applied for disability retirement. On October 18, 2012, the Maryland State Retirement and Pension System, having found that Plaintiff is permanently disabled, informed her that she had 120 days to retire under ordinary disability retirement or be ineligible for disability retirement benefits. According to Plaintiff, the combination of Plaintiff's lack of income, PGCPS's utter refusal to accommodate Plaintiff, and PGCEA's failure to provide adequate representation resulted in Plaintiff's constructive discharge.

On February 28, 2013, she filed a Charge of Harassment and Discrimination with the Prince George's County Human Rights Commission, which was cross-filed with the Equal Employment Opportunity Commission ("EEOC"). On June 11, 2013, Plaintiff filed a complaint in the Circuit Court for Prince George's County, Maryland. Defendants removed the action to this court on July 26, 2013, citing federal question jurisdiction, 28 U.S.C. § 1331. Plaintiff filed an amended complaint on August 26, 2013. The amended complaint contains eight counts. Against Defendant PGCPS, Plaintiff claims common law wrongful/constructive discharge for failure to accommodate (Count I); civil conspiracy with PGCEA to deny Plaintiff a reasonable accommodation and ensure Plaintiff's only option was early retirement (Count IV); failure to accommodate and disparate treatment in violation of the Americans with Disabilities Act, 42 U.S.C. § 12111, (Count V), the Rehabilitation Act, 29 U.S.C. § 794, (Count VI), and their state and county analogs, Md. Code Ann., State Gov't § 20-1001, (Count VII), and Prince George's Cnty. Code § 2-185, (Count VIII).² Against Defendant PGCEA, Plaintiff claims breach of contract for failure to advise adequately and represent Plaintiff (Count II);negligent misrepresentation (Count III); and civil conspiracy (Count IV). PGCPS filed a motion to dismiss for failure to state a claim and lack of subject-matter jurisdiction on September 12, 2013. (ECF No. 22). PGCEA filed a motion to dismiss for failure to state a claim on September 13, 2013. (ECF No. 24). Plaintiff opposed both motions on September 30, 2013 (ECF No. 26), and PGCPS replied on October 17, 2013 (ECF No. 17).

II. Standard of Review

The arguments raised by Defendants in their motions to dismiss - lack of subject matter jurisdiction and failure to state a claim - implicate different standards of review. First, "a failure by the plaintiff to exhaust administrative remedies concerning a Title VII claim deprives the federal courts of subject matter jurisdiction over the claim." Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300-01 (4^th Cir. 2009). A motion to dismiss for lack of subject matter jurisdiction is governed by Federal Rule of Civil Procedure 12(b)(1). Generally, "questions of subject matter jurisdiction must be decided 'first, because they concern the court's very power to hear the case.'" Owens-Illinois, Inc. v. Meade, 186 F.3d 435, 442 n.4 (4^th Cir. 1999) (quoting 2 James Wm. Moore, et al., Moore's Federal Practice § 12.30[1] (3^d ed. 1998)). The Plaintiff always bears the burden of proving that subject matter jurisdiction properly exists infederal court. See Evans v. B.F. Perkins Co., a Div. of Standex Int'l Corp., 166 F.3d 642, 647 (4^th Cir. 1999). In considering a Rule 12(b)(1) motion, the court "may consider evidence outside the pleadings" to help determine whether it has jurisdiction over the case before it. Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4^th Cir. 1991); see also Evans, 166 F.3d at 647. The court should grant such a motion "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Richmond, 945 F.2d at 768.

The purpose of a motion to dismiss under Rule 12(b)(6) is to test the sufficiency of the complaint. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4^th Cir. 2006). A plaintiff's complaint need only satisfy the standard of Rule 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "Rule 8(a)(2) still requires a 'showing,' rather than a blanket assertion, of entitlement to relief." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007). That showing must consist of more than "a formulaic recitation of the elements of a cause of action" or "naked assertion[s] devoid of further factual enhancement." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted).

At this stage, all well-pleaded allegations in a complaint must be considered as true, Albright v. Oliver, 510 U.S. 266, 268 (1994), and all factual allegations must be construed in the light most favorable to the plaintiff, see Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4^th Cir. 1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4^th Cir. 1993)). In evaluating the complaint, unsupported legal allegations need not be accepted. Revene v. Charles Cnty. Comm'rs, 882 F.2d 870, 873 (4^th Cir. 1989). Legal conclusions couched as factual allegations are insufficient, Iqbal, 556 U.S. at 678, as are conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4^th Cir. 1979).

III. Analysis

A. Subject-Matter Jurisdiction: Failure to Exhaust Administratively

PGCPS argues that Plaintiff cannot bring her ADA claim (Count V) because she has not pled that she has received, or is entitled to, a right-to-sue letter from the EEOC. The procedures of the ADA are identical to those in the Title VII co...