Kerrigan v. Bd. of Educ. of Carroll Cnty., CIVIL NO.: WDQ-14-3153
| Decision Date | 28 July 2015 |
| Docket Number | CIVIL NO.: WDQ-14-3153 |
| Parties | BRANDON KERRIGAN, PLAINTIFF, v. BOARD OF EDUCATION OF CARROLL COUNTY, DEFENDANT. |
| Court | U.S. District Court — District of Maryland |
Brandon Kerrigan sued the Board of Education of Carroll County (the "Board")1 for violations of the Americans with Disabilities Act of 1990, as amended ("ADA")2 and state law wrongful termination. ECF Nos. 1, 27-1.3 Pending are Kerrigan's motion for leave to file a second amended complaint, ECF No. 27, and the Board's motion to dismiss the second amended complaint,or alternatively, for summary judgment.4 ECF No. 29. No hearing is necessary. Local Rule 105.6 (D. Md. 2014). For the following reasons, Kerrigan's motion will be granted in part and denied in part,5 and the Board's motion will be denied.6
From January 21 to June 23, 2014, Kerrigan worked for the Board as a custodian at Eldersburg Elementary School and Liberty High School (together, the "schools"). ECF No. 27-1 ¶¶ 3,6.8Kerrigan "performed his duties at least satisfactorily," and never received disciplinary action or counseling for "poor performance or misconduct." Id. ¶ 6.
On April 9, 2014, Kerrigan "severely injured his foot on the job." Id. ¶ 7. Kerrigan completed his shift "and continued working for the next three weeks despite the pain and considerable swelling of his foot." Id.
On May 1, 2014, Kerrigan filed a claim for recovery of medical expenses and lost wages with the Maryland Worker's Compensation Commission. Id. ¶ 8. On May 2, 2014, Kerrigan sought medical treatment for his foot injury; his physician recommended that he remain off work until May 7. Id. ¶ 9. Kerrigan faxed the physician's note to the schools. On May 7, 2014, Kerrigan "returned to work, but continued to experience considerable pain and discomfort." Id. ¶ 10. The Board denied his request for light duty work. Id.
On May 9, 2014, Kerrigan, "at the Board's request, signed a document stating that he had satisfactorily completed his 90-day probationary period." Id. ¶ 11.
On May 20, 2014, Kerrigan visited his primary care physician because his foot had not improved. Id. ¶ 12. The physician "noted foot pain and swelling, and recommended that[Kerrigan] remain off work until May 27." Id. On May 27, Kerrigan's physician referred him to an orthopedic specialist. Id. ¶ 13. Because Kerrigan had been unable to resume regular work duties, his physician recommended that he remain off work until June 2 pending the results of the orthopedic consultation. Id.
On May 30, 2014, Kerrigan visited an orthopedic specialist--"Dr. Blue"--who recommended that he remain off work until June 6, when MRI results would be available. Id. ¶ 14. Kerrigan informed the schools about his absence. Id. On June 9, 2014, Dr. Blue wrote a note stating that Kerrigan had been unable to work from June 6 to June 9; Kerrigan faxed the note to the schools. Id. ¶ 15. In a separate note dated June 9, 2014, in light of the MRI results, another orthopedist--"Dr. Kluge"--recommended that Kerrigan remain off work for three weeks. Id. ¶ 16. Kerrigan informed the schools. Id.9
As of June 9, 2014, Kerrigan had been "medically cleared to return to work as a custodial employee on June 30 without restriction." Id. ¶ 17. However, on June 12, 2014, the Boardtold Kerrigan that, because of his absences, his probationary period had been extended to mid-August, 2014. Id. ¶ 18.10
On June 23, 2014, the Board contacted Kerrigan and asked him to meet with Human Resources ("HR") that morning. Id. ¶ 19. That day, HR gave Kerrigan a letter informing him that "during his (extended) probationary period, he had failed 'to demonstrate the ability to be a dependable asset'"; thus, his "'probationary employment as custodian' was terminated." Id. ¶ 20.11
On July 8, 2014, Kerrigan filed a charge with the Equal Employment Opportunity Commission ("EEOC") alleging that he had been fired because of his disability. Id. ¶ 23. That same day, Kerrigan allegedly received his EEOC notice of right to sue. Id. ¶ 24.12
On October 7, 2014, Kerrigan sued the Board alleging ADA violations and common law wrongful termination. ECF No. 1.13 On November 12, 2014, the Board moved to dismiss counts four and six of the complaint, or for summary judgment. ECF No. 10.14
On December 18, 2014, Kerrigan filed a new EEOC charge alleging that he was fired because of a disability, and because he had requested a reasonable accommodation. ECF No. 27-1 ¶ 25.
On January 12, 2015, Kerrigan moved to amend the complaint and for an order denying as moot the Board's motion to dismiss count four. ECF No. 16.15 On January 26, 2015, Kerrigan asked the EEOC to issue a notice of right to sue. Id. ¶ 26. On February 6, 2015, Kerrigan received a notice of right to sue. Id.; ECF No. 27-3.
On February 24, 2015, Kerrigan moved for leave to file a second amended complaint. ECF No. 27. On March 13, 2015, the Board moved to dismiss the second amended complaint, or alternatively, for summary judgment. ECF No. 29. On April 6, 2015, Kerrigan opposed the motion. ECF No. 32. On April 23, 2015, the Board replied. ECF No. 33.
Under Federal Rule of Civil Procedure 12(b)(6), an action may be dismissed for failure to state a claim upon which relief can be granted. Rule 12(b)(6) tests the legal sufficiency of a complaint, but does not "resolve contests surrounding the facts the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).
The Court bears in mind that Rule 8(a)(2) requires only a "short and plain statement of the claim showing that the pleade is entitled to relief." Migdal v. Rowe Price-Fleming Int'l, Inc., 248 F.3d 321, 325-26 (4th Cir. 2001). Although Rule 8's notice-pleading requirements are "not onerous," the plaintiff must allege facts that support each element of the claim advanced. Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 764-65 (4th Cir. 2003). These facts must be sufficient to"state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
This requires that the plaintiff do more than "plead[] facts that are 'merely consistent with a defendant's liability;'" the facts pled must "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557). The complaint must not only allege but also "show" that the plaintiff is entitled to relief. Id. at 679 (internal quotation marks omitted). "Whe[n] the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not shown--that the pleader is entitled to relief." Id. (internal quotation marks and alteration omitted).
Under Fed. R. Civ. P. 12(b)(1), the Court must dismiss an action if it discovers it lacks subject matter jurisdiction. The plaintiff has the burden of proving the Court has jurisdiction, and the Court must make all reasonable inferences in the plaintiff's favor. Khoury, 268 F.Supp.2d at 606. The Court may "look beyond the pleadings" to decide whether it has subject matter jurisdiction, but it must presume that the factual allegations in the complaint are true. Id.
The ADA makes it unlawful for employers to "discriminate against a qualified individual on the basis of a disability." 42 U.S.C. § 12112(a).16 The Board contends that Kerrigan's ADA claims must fail because he is not "disabled" under the ADA. ECF No. 29-1 at 5. Kerrigan contends that he has pled sufficient facts about his disability. ECF No. 32 at 6. A disability is either "a physical or mental impairment that substantially limits one or more major life activities" (the "actual disability" prong), "a record of such an impairment" (the "record" prong), or "being regarded as having such an impairment" (the "regarded as" prong). 42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2(g)(1)(iii).
In Toyota Motor Manufacturing, Kentucky Inc. v. Williams, 534 U.S. 184, 199, 122 S. Ct. 681, 151 L.Ed.2d 615 (2002), the Supreme Court adopted a strict construction of disability. The Court also stated that a temporary impairment did not qualify as a disability under the ADA. Id. In September 2008, Congressamended the ADA to overturn the Supreme Court's ruling in Toyota. See Summers v. Altarum Inst., Corp., 740 F.3d 325, 329 (4th Cir. 2014). Congress sought to "reinstat[e] a broad scope of protection . . . available under the ADA." ADA Amendments Act ("ADAAA") of 2008, Pub. L. No. 110-325, 122 Stat. 3553. "[T]he [ADAAA] provides that the definition of disability 'shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted . . . .'" Summers, 740 F.3dat 329 (quoting 42 U.S.C. § 12102(4)(A)). "In enacting the ADAAA, Congress abrogated earlier inconsistent caselaw." Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 572 (4th Cir. 2015). Following passage of the ADAAA, the EEOC revised its regulations to reflect the amendments. EEOC regulations state that "[t]he primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability." Id. (quoting 29 C.F.R. § 1630.1(c)(4)).
The Board argues that Kerrigan has insufficiently alleged the "nature and severity" of his foot injury or how it has substantially limited a major life activity. ECF No. 29-1 at 10-11. Kerrigan contends that the "excruciating detail" demanded by the Board is not required at the pleading stage, andthe nature and severity of his injuries are factual issues not properly resolved in a motion to dismiss. ECF No. 32 at 7...
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