Johnson v. Md. Dep't of Labor, Civil Action No. DKC 18-2152

• Citation: 386 F.Supp.3d 608
• Decision Date: 29 April 2019
• Docket Number: Civil Action No. DKC 18-2152
• Parties: Daniel M. JOHNSON v. MARYLAND DEPARTMENT OF LABOR, LICENSING, AND REGULATION, et al.
• Court: U.S. District Court — District of Maryland

386 F.Supp.3d 608

Daniel M. JOHNSON

v.MARYLAND DEPARTMENT OF LABOR, LICENSING, AND REGULATION, et al.

Civil Action No. DKC 18-2152

United States District Court, D. Maryland.

Filed April 29, 2019

Scott Charles LaBarre, LaBarre Law Offices, P.C., Denver, CO, for Daniel M. Johnson, Jr.

Jessica Berman Kaufman, Office of the Attorney General Department of Labor Licensing and Regulation, Nicholas Cabell Sokolow, Maryland Office of the Attorney General, Baltimore, MD, for Maryland Department of Labor, Licensing and Regulation, et al.

MEMORANDUM OPINION

DEBORAH K. CHASANOW, United States District Judge Presently pending and ready for resolution in this employment case is the motion for partial dismissal, or in the alternative, for summary judgment, filed by Defendants Maryland Department of Labor Licensing & Regulation ("DLLR") and Kelly M. Schulz, in her official capacity as Secretary of DLLR (jointly "Defendants"). (ECF No. 11). 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 motion will be granted in part and denied in part.

I. Background

Plaintiff, Daniel M. Johnson ("Plaintiff"), began working for DLLR in 2001. (ECF No. 3, at 3). In January of 2016, Plaintiff "informed Defendants that he was losing a substantial amount of vision due to diabetes." (Id. ). "At this time, he began the interactive process of requesting accommodations." (Id. ). The process continued through September of 2016. (Id. ). At some unspecified point DLLR "requested that Plaintiff ... visit a physician to determine whether he was fit for duty." (Id. ). "Ultimately, that physician determined that [Plaintiff] would be unable to perform the essential functions of his job due to the lack of normal eye sight." (Id. , at 3-4). "Based on the ... advice of the physician, [DLLR] placed [Plaintiff] on involuntary leave which became unpaid leave after June 20, 2016." (Id. , at 4). Plaintiff continued "the interactive process and requested various accommodations." (Id. ). DLLR "denied the accommodations requested by [Plaintiff][.]" (Id. ). "By October of 2016, Plaintiff ... was forced to take disability retirement because he was no longer being paid and accommodations had not been granted to permit him to perform the essential functions of his job." (Id. , at 4-5).

Plaintiff "filed a charge of employment discrimination with the Baltimore office of the Equal Employment Opportunity Commission" ("EEOC") on December 15, 2016, "alleging employment discrimination based on [his] disability, blindness." (ECF No. 17-2, at 1). Plaintiff's charge was transferred to the Maryland Commission on Civil Rights ("MCCR") through a worksharing agreement between the EEOC and MCCR on April 24, 2017. (ECF No. 11-2). MCCR sent Plaintiff a letter on June 21, 2017, acknowledging that Plaintiff "elected to have the case forwarded directly to an investigative unit to be scheduled for a Fact Finding Conference." (ECF No. 17-1, at 9). The letter further stated that:

Pursuant to § 20-1013 of the State Government Article, a Complainant also has the ability to commence a civil action against the Respondent on his or her own behalf in an appropriate State court with respect to an alleged discriminatory employment practice that forms the basis of a charge issued by the Commission. The Complainant may commence such civil action if: (1) the Complainant initially filed a timely administrative charge or complaint under federal, State, or local law alleging an unlawful employment practice by the respondent; (2) at least 180 days have elapsed since the filing of the administrative charge or complaint; and (3) the civil action is filed within 2 years after the alleged unlawful employment practice occurred.

(Id. ). A fact-finding conference was held on April 5, 2018. (ECF No. 17-2, at 2). Plaintiff's counsel was not able to attend the fact-finding conference in person and instead participated through Plaintiff's "cell phone and use [of] its speaker phone capacity." (Id. ). Plaintiff states in his declaration that his counsel "attempted to participate and ask questions" but the investigator "informed [Plaintiff's counsel] that he could not participate in any way and that only those personally involved in the case could speak." According to Plaintiff, the investigator unfairly "did allow [DLLR's counsel] to participate in the Conference" and DLLR's counsel "took the lead on explaining the Department's side of the case." When Plaintiff "challenged the investigator as to why [DLLR's counsel] could participate and [Plaintiff's counsel] could not, the investigator said that [DLLR's counsel] had been advising [DLLR] during the time period prior to [Plaintiff's] termination and was involved with the facts and circumstances involved with [Plaintiff's] employment situation." Plaintiff states that his counsel similarly advised him during the time period prior to his termination. Plaintiff notes that he attended "a few meetings with [DLLR] where" accommodations and a return to work were discussed and "[DLLR's counsel] was not present[.]" During the conference, Plaintiff's counsel "attempted to speak a couple of times to assist [Plaintiff], and the investigator advised him that if he continued, she would end the [c]onference." Defendants contend in a declaration of Sarah P. Harlan, who represented DLLR at the conference, that "counsel for Plaintiff attempted to make evidentiary objections as if the conference were a formal hearing subject to the rules of evidence" and that the "[i]nvestigator advised Plaintiff's counsel that he was not permitted to participate in such a manner." (ECF No. 11-2, at 3). When Plaintiff "confirmed that [his counsel] would not be allowed to participate in [the] [fact-finding conference] in any way, [Plaintiff] decided to leave because ... [DLLR] would be allowed to rely upon its lawyer and have her participate directly in the [c]onference, and [Plaintiff] would not have [the] benefit of [his counsel]."

Plaintiff's complaint was "administratively closed" due to a "failure to cooperate" on April 5, 2018. (ECF No. 11-2, at 13). Plaintiff "received a Right to Sue letter from the [EEOC] on April 24, 2018." (ECF Nos. 3, at 2; 11-2, at 15).

Plaintiff commenced this suit by filing a complaint on July 13, 2018 (ECF No. 1), and an amended complaint on July 31, 2018 (ECF No. 3), asserting claims of disability discrimination under Titles I and II of the Americans with Disabilities Act, 43 U.S.C. § 12101, et seq. (the "ADA"), the Maryland Fair Employment Practices Act, Md. Code Ann., State Gov't § 20-601, et seq. (the "FEPA"), and Section 504 of the Rehabilitation Act, 29 U.S.C. § 701, et seq. (the "Rehabilitation Act"). Defendants filed a motion for partial dismissal, or in the alternative, for summary judgment (ECF No. 11), and a partial answer to the amended complaint (ECF No. 12) on November 20, 2018. Plaintiff responded on December 11, 2018 (ECF No. 17), and Defendants replied on December 20, 2018 (ECF No. 21).

II. Standard of Review

The issues raised implicate multiple standards of review. As will be discussed, the Title II ADA claim and the claim for monetary damages under Title I will be assessed pursuant to Federal Rule of Civil Procedure 12(b)(6). The argument concerning failure to exhaust administrative remedies under the FEPA and Title I of the ADA, as to which both parties rely on materials outside the four corners of the complaint, will be reviewed under Federal Rule of Civil Procedure Rule 56(a).¹

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint. Edwards v. City of Goldsboro , 178 F.3d 231, 243 (4th Cir. 1999). To survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quotation omitted). "A court must consider all well-pleaded allegations in a complaint as true, see Albright v. Oliver , 510 U.S. 266, 268, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994), and must construe factual allegations in the light most favorable to the plaintiff, see Lambeth v. Bd. of Comm'rs of Davidson Cnty. , 407 F.3d 266, 268 (4th Cir. 2005). Nevertheless, a court is not required to accept as true "a legal conclusion couched as a factual allegation." Papasan v. Allain , 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986).

A motion for summary judgment will be granted only if there exists no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a) ; Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Once a properly supported motion for summary judgment is filed, the nonmoving party is required to make a sufficient showing on an essential element of that party's claim as to which that party would have the burden of proof to avoid summary judgment. Celotex , 477 U.S. at 322–23, 106 S.Ct. 2548.

Summary judgment is appropriate under Federal Rule of Civil Procedure Rule 56(a) when there is no genuine dispute as to any material fact, and the moving party is plainly entitled to judgment in its favor as a matter of law. In Anderson , the Supreme Court explained that, in considering a motion for summary judgment, the "judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." 477 U.S. at 249, 106 S.Ct. 2505. A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. 2505. Thus, "the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a...