United States District Court, D. Maryland
ELLEN LIPTON HOLLANDER, District Judge.
Richelle Johnson, plaintiff, a former Baltimore City police officer, filed an employment discrimination action against the Baltimore City Police Department (the "BPD"), defendant, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), and the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (the "ADA"). See Amended Complaint (ECF 12, "Am. Compl.") at 1. Plaintiff, who is African-American, contends that the BPD failed to provide her with a reasonable accommodation of light duty or administrative work. Instead, she claims that she was placed on a medical suspension and eventually forced to retire pursuant to a BPD policy. According to plaintiff, however, the BPD allowed other officers who were not African-Americans to continue working in light duty roles.
Plaintiff seeks, inter alia, a declaratory judgment that the BPD violated Title VII and the ADA; reinstatement; damages, including lost wages and benefits, as well as "compensatory and liquidated damages for the financial and emotional harm" allegedly caused by the BPD; interest, costs, attorney's fees, and expert fees; and an injunction against "future unlawful employment practices." See Am. Compl. at 7-8.
Now pending is defendant's motion to dismiss the Amended Complaint (ECF 26), supported by a legal memorandum (ECF 26-1, "Mem.") (collectively, the "Motion" or "Mot."). Plaintiff opposes the motion (ECF 27, "Opposition" or "Opp."), and defendant has replied (ECF 28, "Reply"). No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, the Motion will be granted in part and denied in part.
I. Factual Background Johnson began working at the BPD on June 1, 1999, in the capacity of Fingerprint
Technician. Am. Compl. ¶ 5. She later held the position of Police Officer, assigned to the Southern District, where she was supervised by Sgt. Lawrence and Sgt. Grueinger, both Caucasian males. Id. ¶ 6.
Plaintiff suffered several injuries during her time with the BPD. In 2005, she "was injured on the job in a motor vehicle accident in a patrol car, " injuring her neck, lower back, and both knees. Johnson returned to full duty after "months of recuperation." Id. ¶ 7. Subsequently, in 2008, Johnson "was again hurt on the job" when she "fell down the stairs leaving a victim's home and injured her lower back in the same area as she had in 2005." Id. ¶ 8. Although Johnson received therapy for that injury, "she continued to experience occasional pain." Id. 
In June 2010, Johnson was diagnosed with "fibroid cystic tumors" and "underwent a partial hysterectomy on July 27, 2010 to treat and remove the tumors." Am. Compl. ¶ 9. Johnson's ongoing treatment for the 2008 back injury "was suspended while she underwent surgery for the partial hysterectomy." Id. ¶ 10. At the time of the surgery, Johnson's physician told her the recovery would take a minimum of 40 days. Because "the internal sutures that Johnson had received took longer than expected to heal, " she remained out of work for three months. See id. ¶¶ 11, 16. In accordance with BPD policy, Johnson provided medical documentation to the BPD's Public Safety Infirmary (the "PSI"), "evidencing her diagnosis, treatment, and prognosis." Id. ¶ 12. She also regularly updated her supervisors and district commanders as to her recovery. Id.
In early September 2010, Johnson was instructed to report to the PSI for an evaluation of her 2008 line-of-duty injury. Although she "inquired about why she was being evaluated for that injury when she was still on leave and recovering from her hysterectomy, " Johnson reported to the PSI as ordered, on September 13, 2010, and was evaluated before being sent home to continue recovering from the hysterectomy. Am. Compl. ¶ 13. The next day, September 14, 2010, Johnson received a telephone call "demanding to know why she had not reported to work after her evaluation at the PSI." As Johnson explains, an officer released for duty by the PSI typically will return to work. Although the PSI had released her for duty in connection with the 2008 injury, Johnson was sent home because she was still recovering from the hysterectomy and had not yet been cleared to return to work. Id. ¶ 14. After receiving the call, Johnson returned to work and explained her situation to a supervisor, who sent her back to PSI. At PSI, she was placed back on disability leave and told to "stay out until her primary care physician had released her to work." Id. ¶ 15.
Johnson returned to work on October 27, 2010, and informed Sgt. Lawrence and Lt. McGarry,  also a Caucasian male, that she had been "medically cleared to return to light duty' work at her assigned duty station." Johnson "specified that she was disabled and was requesting a reasonable accommodation." Am. Compl. ¶ 16. According to Johnson, at that time she was "substantially limited by her medical condition in numerous major life activities, including but not limited to lifting, reaching, pushing, pulling, and running." Johnson adds that because her "medical condition is permanent, " she "is disabled' within the meaning of the Americans with Disabilities Act." Id. ¶ 17.
Lt. McGarry informed Johnson on October 27, 2010, that she was medically suspended pursuant to orders from Major Margaret Barillaro, who is Caucasian, and was being "detailed out of the District." Id. ¶ 18. Prior to the suspension, no one at the BPD discussed with Johnson either the accommodation request or possible alternative accommodations. See id. ¶ 19.
According to Johnson, notwithstanding the BPD's "written policy stating that [it] lacks any permanent light duty police officer positions, BPD does in fact employ numerous police officers in permanent light duty and/or administrative positions." Johnson states that, at "all relevant times hereto, " she "was capable of performing the essential functions of light duty and/or administrative positions at BPD." Id. ¶ 20. Additionally, Johnson explains that because of her medical suspension, she "was ineligible for overtime and secondary employment" and thus "suffer[ed] a significant reduction in her income." Am. Compl. ¶ 21.
In or around September 2011, the BPD notified Johnson that she would have to file for disability retirement due to the 2008 back injury, which she did on September 19, 2011. Am. Compl. ¶ 22. According to Johnson, "[the] BPD characterized [her] 2008 injury as the same injury as the one from 2005, [even] though Johnson had fully recovered and was on full duty at the time of [the] 2008 injury. As such, the BPD was able [to] classify the injury as [a] non-line-of-duty injury for purposes of disability retirement, which significantly reduced the pension Johnson would receive." Id.
Johnson alleges that at least two similarly-situated African-American police officers in the Southern District-Latrice Beverly and Samuel Thomas-"were subjected to the same treatment by Major Barillaro, " in that they "were placed on medical suspension after requesting to be placed on light duty and were eventually forced to retire." Am. Compl. ¶ 23. Yet, according to Johnson, at least four Caucasian or Latino police officers in the Southern District- Todd Nock, Jennifer Hupp, "Rodriguez, " and Jonathon Frye-requested a reasonable accommodation and "were permitted by Major Barillaro to return to light duty instead of being placed on medical suspension or forced to retire." Id. ¶ 24.
Johnson filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission ("EEOC") and received a right-to-sue letter "on or after May 29, 2012." Am. Compl. ¶ 25. Although plaintiff did not attach the EEOC charge to her Amended Complaint, defendant attached it to its Motion. See Mot. Exh. A ("Charge of Discrimination").
Plaintiff's Charge of Discrimination is dated March 26, 2011. Id. The Charge of Discrimination form includes ten check-box options in which a petitioner can indicate one or more bases of the alleged discrimination. Johnson selected the boxes labeled "RACE" and "DISABILITY"; she did not select any of the other options. Id. Moreover, she specified that the alleged discrimination occurred between October 27, 2010, and February 8, 2011, and further alleged "CONTINUING ACTION." Id. The narrative portions of Johnson's allegations, which are discussed below, generally parallel the Amended Complaint's allegations pertaining to the time period of July 2010 through October 2010. See id.
In connection with Count I's Title VII claim of race discrimination, the Amended Complaint states that the BPD "denied Johnson a reasonable accommodation while providing the same reasonable accommodation to Caucasian and Latino Police Officers." Am. Compl. ¶ 30. Furthermore, the BPD allegedly "placed Johnson on medical suspension, causing a significant reduction in her income, and eventually forced her to retire, when similarly situated Caucasian and Latino Police Officers have not be placed on medical suspension and/or forced to retire after requesting to be placed on light duty." Id. ¶ 31.
In Count II, the ADA claim, Johnson states that she was "entitled to protection under the ADA in that she was disabled and/or regarded [as] disabled, and she was capable of performing the essential functions of a light duty and/or administrative Police Officer." Am. Compl. ¶ 37. According to Johnson, the BPD violated the ADA when it "knowingly and intentionally engaged in unlawful discrimination based on Johnson's disability by failing to accommodate her disability and by forcing her into early retirement because of her disability." Id. ¶ 38. Additional facts are included in the Discussion.
A. Employment Discrimination
Plaintiff brings claims under Title VII and the ADA. Title VII prohibits an employer from taking "adverse employment action" against an employee on a prohibited basis. James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th Cir. 2004). Among other things, the ADA "makes it unlawful for covered employers to discriminate against a qualified individual on the basis of disability.'" Summers v. Altarum Institute, Corp., 740 F.3d 325, 328 (4th Cir. 2014) (quoting 42 U.S.C. § 12112(a)).
1. Proof under Title VII
In general, there are "two avenues" at trial by which a plaintiff may prove that an adverse employment action amounts to intentional employment discrimination. Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284 (4th Cir. 2004) (en banc), cert. denied, 543 U.S. 1132 (2005). The first avenue is to offer evidence of discrimination under "ordinary principles of proof.'" Burns v. AAF-McQuay, Inc., 96 F.3d 728, 731 (4th Cir. 1996) (citation omitted). To satisfy ordinary principles of proof, a plaintiff at trial must provide direct or circumstantial evidence of discrimination that is sufficiently probative to meet her burden of proof. See Evans v. Technologies Applications & Service Co., 80 F.3d 954, 959 (4th Cir. 1996).
The second avenue of proof available to the plaintiff at trial is to follow the burden-shifting approach first articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The McDonnell Douglas scheme is "a procedural device, designed only to establish an order of proof and production." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 521 (1993) (emphasis omitted). Under the McDonnell Douglas approach, the "ultimate burden of persuasion [at trial] never shifts' from the plaintiff" to prove intentional unlawful discrimination. Williams v. Cerberonics, Inc., 871 F.2d 452, 456 n. 2 (4th Cir. 1989) (citation omitted).
Absent direct evidence of discrimination, the plaintiff at trial must first establish a "prima facie case of discrimination." Laing v. Fed. Exp. Corp., 703 F.3d 713, 719 (4th Cir. 2013); see Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 294 (4th Cir. 2010). Although the precise formulation of the required prima facie showing will vary in "differing factual situations, " McDonnell Douglas, 411 U.S. at 802 n.13, the plaintiff in an employment discrimination suit under Title VII is generally required to show that the employer took adverse action against the plaintiff "under circumstances which give rise to an inference of unlawful discrimination." Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
If the plaintiff establishes a prima facie case, "a presumption of illegal discrimination arises, and the burden of production shifts to the employer" to produce evidence of a legitimate, non-discriminatory reason for its adverse employment action. Hoyle v. Freightliner, LLC, 650 F.3d 321, 336 (4th Cir. 2011); see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). "If the defendant carries this burden of production the presumption raised by the prima facie case is rebutted." Burdine, 450 U.S. at 255. In that circumstance, "the McDonnell Douglas framework-with its presumptions and burdens-is no longer relevant, " and "simply drops out of the picture." St. Mary's Honor Ctr., 509 U.S. at 510-11. Stated another way, if the employer produces evidence that could persuade a fact finder that it had a legitimate, non-discriminatory reason for its actions, "the defendant has done everything that would be required of [it] if the plaintiff had properly made out a prima facie case, " and therefore, "whether the plaintiff really did so is no longer relevant." U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983).
When the defendant meets its burden of production, the plaintiff must then prove, by a preponderance of the evidence, "that the proffered reason was not the true reason, " and that the plaintiff "has been the victim of intentional discrimination." Burdine, 450 U.S. at 255-56; see Reeves, 530 U.S. at 143; St. Mary's Honor Ctr., 509 U.S. at 516-20; Adams v. Trustees of Univ. of North Carolina-Wilmington, 640 F.3d 550, 560 (4th Cir. 2011) ("[I]n demonstrating the Defendants' decision was pretext, [plaintiff] had to prove both that the reason was false, and that discrimination was the real reason.'") (quoting Jiminez v. Mary Washington Coll., 57 F.3d 369, 378 (4th Cir. 1995)) (emphasis in original).
These two methods of proof establish the standards to prove intentional employment discrimination at trial. Hill, 354 F.3d at 284-85. But, at the motion to dismiss stage, they serve only to inform a court's evaluation of the allegations. See Merritt, 601 F.3d at 295. Accordingly, in a Title VII discrimination claim, "a complaint in an employment discrimination lawsuit [need not] contain specific facts establishing a prima facie case of discrimination under the framework set forth in McDonnell Douglas. " Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 508 (2002) (emphasis added). Rather, as with any other claim falling within the purview of Rule 8(a), "to survive a motion to dismiss, the complaint must state a plausible claim for relief' that permit[s] the court to infer more than the mere possibility of misconduct' based upon its judicial experience and common sense.'" Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, ___ U.S. ___ , 132 S.Ct. 1327 (2012) (citation omitted).
In the context of a Title VII race discrimination claim, the Fourth Circuit has framed the prima facie case as: "(1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action; and (4) different treatment from similarly situated employees outside the protected class." Id. (citing White v. BFI Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004)); see also Gerner v. County of Chesterfield, Va., 674 F.3d 264, 266 (4th Cir. 2012).
2. Proof under the ADA
The McDonnell Douglas burden-shifting framework applies to employment claims under the ADA. See, e.g., Raytheon Co., 540 U.S. at 50-52 & n.3. With respect to an ADA claim of wrongful discharge, the Fourth Circuit has stated:
In a wrongful discharge case under the ADA, a plaintiff makes out a prima facie case by demonstrating that "(1) he is within the ADA's protected class; (2) he was discharged; (3) at the time of his discharge, he was performing the job at a level that met his employer's legitimate expectations; and (4) his discharge occurred under circumstances that ...