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Moore v. Loney

United States District Court, D. Maryland

February 19, 2014

ANDREA C. MOORE, Plaintiff,
CHRISTINA LONEY, et al., Defendants.


GEORGE L. RUSSELL, III, District Judge.

THIS MATTER is before the Court on three pending motions, including Defendants' Motions for Summary Judgment (ECF No. 43) and to Strike Certain Paragraphs of Kevin Gembarosky's Affidavit (ECF No. 51), and Plaintiff's Motion to Strike, or Alternatively, in Limine (ECF No. 47).

Plaintiff Andrea C. Moore brings this action against her former employer, Maryland Department of Health & Mental Hygiene ("DHMH") - Thomas B. Finan Center ("Finan Center"), and several DHMH employees in their individual and official capacities alleging failure to accommodate, retaliation, and wrongful discharge under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 (2012), discrimination under the Rehabilitation Act, 29 U.S.C. § 794(a) (2012), and interference and retaliation under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2615(a)(2) (2012). Included as Defendants are Christina Loney (Finan Center's Personnel Officer); John Cullen (Finan Center's Chief Operating Officer); James Isaac (Director of Rehabilitation and Moore's supervisor); Harold Young (Chief of DHMH's Employee Relations); and (current Secretary of DHMH) Joshua Sharfstein (collectively "Defendants").[1]

The issues have been fully briefed and no hearing is necessary. See Local Rule 105.6 (D.Md. 2011). For the reasons set forth below, Moore's Motion to Strike, or Alternatively, in Limine will be denied. Defendants' Motion to Strike Certain Paragraphs of Kevin Gembarosky's Affidavit, and Motion for Summary Judgment will be granted.


Finan Center is an inpatient psychiatric hospital located in Cumberland, Maryland, operated by DHMH. Moore began her position at Finan Center in November 2006 as an Art Therapist I. Generally, an Art Therapist "evaluate[s] for, plan[s], implement[s], and document[s] specific art therapy services for patients who have acute and chronic psychiatric conditions." (See Defs.' Mot. Summ. J. ["Summ. J. Mot."] Ex. 5 ["Position Description"], at 2, ECF No. 43-8).

Sometime prior to August 2008, Moore was issued a number of "letters of counseling" citing performance issues related to her documentation and record keeping, time management, and absenteeism. As a result, Moore disclosed that she suffered from a disability caused by head trauma sustained during childhood and requested accommodations including, among others, teleworking, receiving written and oral communication whenever there were changes made to her supervisor's previous instructions, being allowed to take notes during meetings, being allowed more flexibility regarding her work schedule, and intermittent time off.[3]

In response to Moore's request for accommodation, on September 2, 2008, Finan Center requested that Moore provide written documentation from her medical provider supporting her disability and explaining how the requested accommodations would help her perform the essential functions of her position. Sometime in October 2008, Moore provided Finan Center with a nine-year-old psychological examination from a psychologist assessing Moore's need for educational accommodations in college. Finan Center personnel, however, did not accept this psychological examination because it was too old and advised Moore to provide current documentation. Moore inquired about what specific information she was required to provide but asserts she did not receive any response in this regard.

In March 2009, Loney referred Moore to the State Medical Director ("SMD") for a number of reasons including that Moore asked for reasonable accommodations and Finan Center was seeking a determination of whether she could perform the essential functions of her job. The SMD, Dr. Mike Lyons, referred Moore to a neurologist, Dr. Aaron Noonberg, for an examination. Dr. Noonberg asserted that Moore's "pattern of strength and weaknesses should allow her to perform the essential job duties of her position description. However, she may show inconsistency and some reliability problems particularly along the lines of disorganization and lateness due to her working memory and complex attentional difficulties." (Summ. J. Mot. Ex. 16, at 1, ECF No. 43-19). Neither doctor recommended specific accommodations, however, Dr. Lyons's report noted that Moore would likely benefit from stimulant medication and electronic reminder devices.

In his April 21, 2009 Follow-Up Workability Evaluation, Dr. Lyons noted that Moore suffered from a number of acute medical conditions but hoped some of those conditions had improved such that she could avoid further absenteeism. Based on a review of Moore's examinations and medical records, Dr. Lyons opined that Moore was able to perform the full duties of her position but noted that if Moore's absenteeism did not improve or worsened, she should be referred back to his office "for a final recommendation regarding her ability to consistently and reliably perform the essential duties of [her] position." (Summ. J. Mot. Ex. 15, at 4, ECF No. 43-18).

Moore was absent from work for the entire period between November 20, 2009, and December 15, 2009. On December 14, 2009, Loney mailed to Moore FMLA information and forms. Moore returned to work on December 16, 2009. The next day, after meeting with Moore, Loney decided to refer Moore back to Dr. Lyons for a follow-up examination to determine if there was any way Moore could "realistically perform her job at any functioning level." (Summ. J. Mot. Ex. 35 ["Jan. 2010 SMD Referral Letter"], at 4, ECF No. 43-38).

In the request for re-evaluation, Loney indicated, among other things, that Moore's absenteeism worsened. Loney cited 118 hours of absence in 2007, 208 hours of absence in 2008, and 411 hours of absence in 2009. Moore reported to Dr. Lyons for a follow-up evaluation on January 7, 2010.

As a result of the evaluation, Dr. Lyons issued a report concluding that Moore was "unable to effectively, consistently, and reliably perform the essential duties of an Art Therapist II, [4] with or without accommodations." (Summ. J. Mot. Ex. 34 ["Second Follow-Up Workability Evaluation"], at 4, ECF No. 43-37). On January 12, 2010, after reviewing Dr. Lyons's report, Cullen and Loney met with Moore and asked her to resign or otherwise be terminated. She was placed on administrative leave for two weeks and given until January 26, 2010, to tender her resignation. Finan Center received and approved Moore's completed FMLA paperwork on January 26, 2010. Moore, however, remained on administrative leave until February 24, 2010, when she was terminated from her employment.

Moore filed her original Complaint with this Court seeking monetary and injunctive relief against Defendants in their official and individual capacities alleging violations of the ADA, violations of Fourteenth Amendment Due Process, and intentional infliction of emotional distress. (ECF No. 1). On December 16, 2011, Moore amended her Complaint alleging Failure to Provide Reasonable Accommodations under Title I of the ADA (Count I); Wrongful Discharge under Title I of the ADA (Count II); Failure to Provide Reasonable Accommodations under Title II of the ADA (Count III); Wrongful Discharge under Title II of the ADA (Count IV); Retaliation under the ADA (Count V); Disability Discrimination under the Rehabilitation Act (Count VI); Violation of Fourteenth Amendment Due Process (Count VII); Interference with Leave under the FMLA (Count VIII);[5] and Retaliation under the FMLA (Count IX). (ECF No. 9). On June 4, 2012, the Court dismissed Count VII from Moore's Amended Complaint. (ECF No. 19).

Defendants now seek summary judgment in their favor on all remaining counts. Moore filed a response in opposition for summary judgment and a motion to strike, asserting Defendants filed twenty-nine inadmissible exhibits to their motion for summary judgment. (ECF No. 47). Defendants filed a reply to the response (ECF No. 50), and a motion to strike certain paragraphs of Kevin Gembarosky's affidavit that was attached as Exhibit 5 to Moore's opposition.


A. Motions to Strike

The parties have each filed a motion to strike concerning testimony relevant to Defendants' motion for summary judgment. Because the testimony at issue impacts the Court's decision on the motion for summary judgment, the Court will address these motions first.

1. Moore's Motion to Strike

Moore moves to prevent Defendants from admitting exhibits 5-9, 11, 13-16, 18, 20-35, and 43-44 attached to Defendants' Motion for Summary Judgment. Moore argues these exhibits present facts unsupported by admissible evidence and constitute inadmissible hearsay. Moore, however, provides no other evidentiary basis for striking these exhibits beyond hearsay. Because the exhibits either fit into a hearsay exception or are not hearsay, the motion will be denied.

"Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Planmatics, Inc. v. Showers , 137 F.Supp.2d 616, 620 (D.Md. 2001), (quoting United States v. Lis , 120 F.3d 28, 30 (4th Cir. 1997) (emphasis omitted) (internal quotation marks omitted), aff'd, 30 F.Appx. 117 (4th Cir. 2002); see also Fed.R.Evid. 801(c). An out-of-court statement is not hearsay unless it is offered to prove the truth of what is asserted. See Dent v. Siegelbaum, No. DKC 08-0886, 2012 WL 718835, at *8 (D.Md. Mar. 5, 2012) ("[O]ut-of-court statements not offered for the truth of the matter asserted are not hearsay and not inadmissible."). Statements offered to show the effect on the listener of the statement, statements that have independent legal significance simply because they were made, regardless of their literal truth or falsity ("legally operative facts"), and statements offered as circumstantial evidence of the declarant's state of mind, or motive, are some instances in which out-of-court declarations are not hearsay. Lorraine v. Markel Am. Ins. Co. , 241 F.R.D. 534, 565-66 (D.Md. 2007).

Additionally, there are a number of exceptions to the hearsay rule. As relevant here, statements of the declarant's "then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health)" are admissible as an exception to the hearsay rule pursuant to Rule 803(3). Fed.R.Evid. 803(3).

Exhibits 5-9, 18, 20-29, 30-32, and 44 are offered to establish facts with independent legal significance. Because these documents are not offered for their truth, they are not hearsay and the Court may consider them for any relevant purpose.

Exhibits 6-9, 20, 22-29, and 44 are memoranda or notices memorializing counseling or disciplinary actions against Moore. Each of these incidents of counseling or discipline are supported by affidavit testimony from Defendants Isaac or Cullen. (See Summ. J. Mot. Ex. 1, ¶¶ 7-16, ECF No. 43-4); (Summ. J. Mot. Ex. 19 ["Cullen Aff."], ¶¶ 3-5, 8-9, ECF No. 43-22). These exhibits are offered as evidence that Finan Center counseled or disciplined Moore several times and that notice of the same was given to her. These are facts with independent legal significance because they help establish a legitimate non-discriminatory reason for terminating Moore's employment.

Exhibit 32, a December 14, 2009 letter to Moore from Loney, corroborates Loney's affidavit testimony that she mailed to Moore FMLA information and forms. (See Summ. J. Mot. Ex. 4, ¶ 13, ECF No. 43-7). Exhibit 21, a July 15, 2009 memorandum to Moore, corroborates Cullen's testimony that a new call-off procedure had been provided to Moore in writing. (See Cullen Aff. ¶ 6). Exhibit 30, a September 3, 2009 Plan of Correction memorandum to Moore, corroborates Cullen's ...

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