United States District Court, D. Maryland
UNRAY PETERS, SR.
BALTIMORE CITY BOARD OF SCHOOL COMMISSIONERS.
MEMORANDUM AND ORDER
WILLIAM M. NICKERSON, Senior District Judge.
This case relates to alleged employment discrimination by Defendant Baltimore City Board of School Commissioners against Plaintiff Unray Peters, Sr. Plaintiff alleges that he suffered multiple workplace injuries while employed by Defendant, and, as a result, is permanently disabled. He asserts that, as a result of his disability, he is restricted in the type of work that he can perform. He requested employment that would accommodate his disability, but was not permitted by Defendant to return to work in a suitable position. Instead, Defendant subjected Plaintiff to constructive termination/retirement. Plaintiff asserts that such action constituted discrimination on the basis of his age and disability and that Defendant failed to reasonably accommodate his disability.
Before the Court are three Motions: (1) a Motion for Partial Reconsideration, ECF No. 22, filed by Plaintiff; (2) a Motion to Quash or for Protective Order, ECF No. 25, also filed by Plaintiff; and (3) a Motion to Strike Plaintiff's Expert Report and Preclude Expert Testimony by Dawn Haag-Hatterer, ECF No. 20, filed by Defendant. For the reasons stated herein, the Court determines that no hearing is necessary, Local Rule 105.6; the Motion for Partial Reconsideration will be denied; the Motion to Quash or for Protective Order will be granted in part; and the Motion to Strike Expert Report will be granted in part.
I. Motion for Reconsideration
Plaintiff previously filed a Motion for Leave to Amend his Complaint, seeking to add a sex discrimination claim, as well as to clarify his disability claim with respect to retaliation and to correct certain dates in his original complaint. ECF No. 11. The Court issued a Memorandum and Order, see ECF No. 18, granting leave to amend as to the correction of dates but denying leave as to both the sex discrimination and retaliation claims.
With respect to that portion of Plaintiff's Motion seeking to "clarif[y]... his retaliation allegation regarding his disability claim, " ECF No. 22 at 1, the Court determined that Plaintiff failed to exhaust his administrative remedies. Specifically, the Court noted that neither retaliation, nor any facts lending themselves toward a retaliation claim, were noted in Plaintiff's EEOC charge. ECF No. 18 at 6-7. The Court declined to treat Plaintiff's intake questionnaire as a part of the EEOC charge document, see id. at 6 (citing Cohens v. Maryland Dept. of Human Resources, 933 F.Supp.2d 735, 744 (D. Md. 2013); Park v. Howard Univ. , 71 F.3d 904, 909 (D.C. Cir. 1995)), but considered "whether Plaintiff's claim that he was retaliated against for requesting a reasonable accommodation [was] reasonably related' to his EEOC charge, such that it would have reasonably been expected to follow from an administrative investigation of that charge.'" Id. at 6-7 (quoting Miles v. Dell, Inc. , 429 F.3d 480, 492 (4th Cir. 2005)). Noting that Plaintiff knew of his retaliation claim at the time he filed his EEOC charge and that the basis for his retaliation claim was different in fact and substance than those listed in the EEOC charge, the Court found that Plaintiff failed to exhaust his administrative remedies and denied leave to amend on that ground. Id.
Plaintiff now seeks reconsideration of that portion of the Court's Order. In arguing for reconsideration, Plaintiff presents no new legal arguments, but rather contends primarily that (1) plaintiffs may raise retaliation claims for the first time in federal court, see ECF No. 22 at 2-3 (quoting Nealon v. Stone , 958 F.2d 584, 590 (4th Cir. 1992)); and (2) because the facts in the charge lent themselves to a retaliation claim, this Court was unreasonably harsh in denying Plaintiff's Motion for Leave to Amend due to, in effect, his failure to check the "retaliation" box on his charge. See id. at 3-6. In addition, Plaintiff introduces a new document, Plaintiff's Rebuttal to Baltimore City Public Schools' Position Statement, ECF No. 22-1, which he asserts demonstrates that he "clearly asserted facts that could be construed to imply nothing but an accusation of retaliation." ECF No. 22 at 5.
In asserting that a retaliation claim may be brought for the first time in federal court, Plaintiff relies primarily on the Fourth Circuit's decision in Nealon v. Stone , 958 F.2d 584 (4th Cir. 1992). In Nealon, the Fourth Circuit considered whether the plaintiff's Title VII claim of retaliation, which was premised on alleged retaliation for filing her EEOC charge, was barred for failure to exhaust administrative remedies where the plaintiff failed to allege it in her administrative charge. Id. at 590. Reasoning that such retaliation was "like or related to allegations contained in the charge and growing out of such allegations during the pendency of the case before the Commission, " the Court held that the plaintiff did not need to separately exhaust her administrative remedies to assert her retaliation claim. Id . (quoting Hill v. Western Electric Co. , 672 F.2d 381, 390 n.6 (4th Cir. 1982)).
Plaintiff's reliance in Nealon is misplaced. Nowhere in Nealon does the Fourth Circuit suggest that all claims of retaliation are exempt from the requirement that the plaintiff exhaust administrative remedies. To the contrary, Nealon, as well as other authority from this circuit, see, e.g., Carter v. Rental Uniform Serv. of Culpeper, Inc. , 977 F.Supp. 753, 758 (W.D. Va. 1997), appear to be limited to claims of retaliation that arose subsequent to the filing of EEOC charge. See also Jones v. Calvert Grp., Ltd. , 551 F.3d 297 (4th Cir. 2009).
Here, unlike in Nealon, Plaintiff does not allege retaliation for having filed his EEOC charge, as he had separated from his employment with Defendant prior to the filing of his charge. Further, there is no indication from the documents provided by Plaintiff - including the document attached to his Motion for Reconsideration - that Defendant was on notice of a retaliation claim during the EEOC process. Upon reviewing those documents, the Court does not find that the facts clearly imply an accusation of retaliation. Plaintiff points to no specific provision in his Rebuttal to Baltimore City Public Schools' Position Statement in which he asserts a claim of retaliation, and, indeed, the document - which was drafted by his attorney - specifies only discrimination-related claims as grounds for his claim, including for his discharge. See, e.g., ECF No. 22-1 at 1 (alleging that his termination/retirement resulted from discrimination on the basis of his disability and/or age). Nowhere does it allege that Defendant retaliated against Plaintiff for requesting a reasonable accommodation. Thus, because Plaintiff's EEOC charge did not include facts asserting retaliation, and retaliation was not "reasonably related to the original complaint, " Plaintiff did not exhaust his administrative remedies as to retaliation. See generally Johnson v. Portfolio Recovery Assocs., LLC , 682 F.Supp.2d 560 (E.D. Va. 2009). The Motion for Reconsideration will therefore be denied.
II. Motion to Quash
Plaintiff has also filed a Motion to Quash Third Party Subpoenas and for Protective Order to Preclude Use of Improperly Obtained Employment Records, ECF No. 25, in which he seeks to quash subpoenas issued to two third-party employers for whom he worked subsequent to his employment with Defendant. The subpoenas at issue, directed toward non-parties Schools Sisters of Notre Dame and the University of Maryland, requested the following:
1. Any and all documents relating to Unray M. Peters..., including Unray Peters' complete personnel file and any and all documents, notes, diaries, logs, memoranda, letters, correspondence, statistics, interoffice and interoffice [sic] communications, emails, notations of any sort of conversations, computer printouts, printed matter, worksheets or other documents, recordings or communications regarding Unray Peters of whatever nature, including documents either generated or maintained by management, human resources, employee benefits, workers' compensation, or supervisory personnel; and regarding any aspect of his hiring, employment and/or termination.
2. Any and all documents relating to Unray Peters' payroll history, including any and all wages and benefits earned, accrued and paid while in your employment, including any wages and ...