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Perry v. Dillon's Bus Service, Inc.

United States District Court, D. Maryland

June 9, 2017

AUBREY PERRY Plaintiff,
v.
DILLON'S BUS SERVICE, INC., et al. Defendants.

          MEMORANDUM OPINION

          Ellen Lipton Hollander United States District Judge

         Aubrey Perry, a commercial bus driver, filed suit against his former employers, Dillon's Bus Service, Inc. ("Dillon's") and Coach USA, Inc. ("Coach") (collectively "Dillon's"), [1]alleging violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.; the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq.; the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq.; and the Maryland Fair Employment Practices Act ("FEPA"), Md. Code (2014 Repl. Vol.), § 20-602 of the State Government Article ("S.G."). ECF 1. Perry also asserts claims under Maryland law for wrongful discharge and intentional infliction of emotional distress. Id[2]

         In November 2014, plaintiff was taken to an emergency room by ambulance after experiencing chest pains and numbness in his arm while working as a bus driver. Mr. Perry claims that although he was medically cleared the next day to return to work, his former employers did not permit him to do so for a one-month period. At the time, plaintiff was 59 years of age. ECF 1, ¶ 37.

         Defendants filed a motion to dismiss (ECF 14), pursuant to Fed.R.Civ.P. 12(b)(6) ("Motion"), supported by an exhibit. ECF 14-2. Plaintiff opposes the Motion (ECF 18, "Opposition"), supported by exhibits. ECF 16-1 to ECF 16-4.[3] Defendants replied (ECF 22, "Reply"), and submitted another exhibit. ECF 22-1.

         No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall grant the Motion.

         I. Factual and Procedural Background[4]

         Defendants operate a commercial bus service. ECF 1, ¶ 8. They hired plaintiff as a bus driver on or about March 24, 2014. Id., ¶ 11. According to plaintiff, he "was a loyal employee who made significant contributions to Defendants' business and performed all of his essential job functions properly and satisfactorily." Id., ¶ 16. As noted, plaintiff was 59 years of age at the relevant time. Id., ¶ 37.

         On November 6, 2014, plaintiff experienced chest pains and numbness in his arm while driving on his bus route in Anne Arundel County. Id., ¶ 17. He was taken by ambulance to the emergency room at the Anne Arundel Medical Center. Id. Plaintiff was released from the hospital with a note that authorized him to return to work the next day. On November 7, 2014, he produced the doctor's note and informed his employers of his desire to return to work. Id., ¶¶ 18-19.

         However, Dillon's Safety Manager, Kimberly Nutter, informed plaintiff that he would need to provide the results of his emergency room visit before he would be allowed to return to work. ECF 1, ¶ 20. According to Mr. Perry, Ms. Nutter, or someone authorized by her or defendants, contacted the hospital and attempted to obtain plaintiffs medical information. Id. The hospital refused to release the records and informed defendants that "the request was a violation of Plaintiffs rights under the Health Insurance Portability and Accountability Act (HIPAA)…." Id., ¶ 21.

         Plaintiff attended an appointment with his primary care physician, Dr. William Sykora, on November 13, 2014, and received another return-to-work document, along with the results of his emergency room visit, which he submitted to Ms. Nutter the next day. Id., ¶¶ 24-25. Nevertheless, Ms. Nutter continued to "bar" plaintiff from returning to work, "claiming that she 'may need' even more medical information." Id., ¶ 25.

         On November 17, 2014, Ms. Nutter informed plaintiff that Dr. Liva, [5] Coach's Medical Director, wanted plaintiff to undergo a cardiac catheterization prior to returning to work. Id., ¶ 26. Mr. Perry maintains that he "was expected to cover the cost of this procedure[.]" Id., ¶ 27. He informed Ms. Nutter on November 20, 2014, that his primary care physician would not order a cardiac catheterization because the test was an "'overreach'" and medically unnecessary. Id., ¶ 28. During ensuing communications about his job status, when Mr. Perry asked if he would be terminated because his physician would not order the catheterization, Ms. Nutter merely promised to call plaintiff back the next day, but she failed to do so. Id., ¶ 29.

         "At that point, wrongfully barred from working by Defendants, unsure he even had a job, and having gone without compensation for three weeks, Plaintiff sought help from the Maryland Department of Labor, Licensing and Regulation Division of Unemployment Insurance ('DLLR'), including guidance as to possible eligibility for benefits." ECF 1, ¶ 30.

         Then, on November 26, 2016, Ms. Nutter instructed Mr. Perry to call another company representative, Ingrid Murley, and provide that person with a "summary of information related to his emergency room visit and subsequent events." Id., ¶ 32. Plaintiff called Ms. Murley, who responded that she would attempt to contact plaintiffs primary care physician. Id., ¶ 33.

         A week later, on December 3, 2014, DLLR informed Mr. Perry that "Defendants had falsely reported to the State that Plaintiff had been placed on leave of absence for failing a Department of Transportation ("DOT") physical." Id., ¶ 34. Plaintiff insists that he was never required to take a DOT physical, never failed any test, and "had never received notice of any such alleged failure or of any such 'leave' status." Id

         On December 5, 2014, "after days of no communication between Plaintiff and Defendants, " Ms. Nutter told plaintiff that he was medically cleared for work by the medical director, Dr. Liva. Id., ¶ 35. However, "[b]y then, Plaintiff had gone a month without pay and was already in the process of taking other employment." Id

         Plaintiff contends that the defendants engaged in conduct outlined above without any justification, in an effort to eliminate him from employment, "solely" because of his age. Id. ¶ 39; see also Id. ¶¶ 28-40. According to plaintiff, defendants "fabricated medical requirements" and "forced him" and others out of a job. Id. ¶ 40; see Id. ¶ 39.

         The Complaint contains the following causes of action: "Count I: Violation of ADEA"; "Count II: Violation of ADA"; "Count III: Violation of ADA-Retaliation"; "Count IV: Violation of FLSA"; "Count V: Wrongful Discharge"; "Count VI: Violation of Maryland Law"; and "Count VIII: Intentional Infliction of Emotional Distress."[6] Mr. Perry seeks back pay, "front pay, " benefits, and other compensatory damages in the amount of $100, 000.00, as well as liquidated damages and/or punitive damages in the amount of $100, 000.00, along with attorney's fees. ECF 1 at 7-13.

         Defendants urge dismissal of Mr. Perry's claims, asserting that "after the medical incident Plaintiff was ineligible to drive a bus until medically cleared pursuant to federal law." ECF 14 at 2. Further, they claim that Perry "was not discharged in contravention of a clear mandate of public policy." Id. And, they contend that plaintiff "has not suffered any 'severe emotional distress' as a result of any extreme or outrageous conduct by Dillon's." Id.[7]

         II. Standard of Review

         A defendant may test the legal sufficiency of a complaint by way of a motion to dismiss under Rule 12(b)(6). Goines v. Valley Cmty, Servs, Bd., 822 F.3d 159, 165-66 (4th Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010), aff'd sub nom. McBurney v. Young, __U.S. __, 133 S.Ct. 1709 (2013); Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule 12(b)(6) motion constitutes an assertion by a defendant that, even if the facts alleged by a plaintiff are true, the complaint fails as a matter of law "to state a claim upon which relief can be granted."

         Whether a complaint states a claim for relief is assessed by reference to the pleading requirements of Fed.R.Civ.P. 8(a)(2). It provides that a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." The purpose of the rule is to provide the defendants with "fair notice" of the claims and the "grounds" for entitlement to relief. Bell Atl., Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

         To survive a motion under Fed.R.Civ.P. 12(b)(6), a complaint must contain facts sufficient to "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570; see Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) ("Our decision in Twombly expounded the pleading standard for 'all civil actions' ...." (citation omitted)); see also Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d 754, 768 (4th Cir. 2011). But, a plaintiff need not include "detailed factual allegations" in order to satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555. Moreover, federal pleading rules "do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted." Johnson v. City of Shelby, __U.S.__, 135 S.Ct. 346, 346 (2014) (per curiam).

         Nevertheless, the rule demands more than bald accusations or mere speculation. Twombly, 550 U.S. at 555; see Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). If a complaint provides no more than "labels and conclusions" or "a formulaic recitation of the elements of a cause of action, " it is insufficient. Twombly, 550 U.S. at 555. Rather, to satisfy the minimal requirements of Rule 8(a)(2), the complaint must set forth "enough factual matter (taken as true) to suggest" a cognizable cause of action, "even if ... [the] actual proof of those facts is improbable and ... recovery is very remote and unlikely." Twombly, 550 U.S. at 556 (internal quotations omitted).

         In reviewing a Rule 12(b)(6) motion, a court "'must accept as true all of the factual allegations contained in the complaint'" and must "'draw all reasonable inferences [from those facts] in favor of the plaintiff.'" E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations omitted); see Semenova v. Maryland Transit Admin., 845 F.3d 564, 567 (4th Cir. 2017); Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015); Kendall v. Balcerzak, 650 F.3d 515, 522 (4th Cir. 2011), cert. denied, 565 U.S. 943 (2011). But, a court is not required to accept legal conclusions drawn from the facts. See Papasan v. Allain, 478 U.S. 265, 286 (1986). "A court decides whether [the pleading] standard is met by separating the legal conclusions from the factual allegations, assuming the truth of only the factual allegations, and then determining whether those allegations allow the court to reasonably infer" that the plaintiff is entitled to the legal remedy sought. A Society Without a Name v. Virginia, 655 F.3d 342, 346 (4th. Cir. 2011), cert. denied, __U.S. __, 132 S.Ct. 1960 (2012).

         In general, courts do not "resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses" through a Rule 12(b)(6) motion. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). The purpose of the rule is to ensure that defendants are "given adequate notice of the nature of a claim" made against them. Twombly, 550 U.S. at 555-56 (2007). But, "in the relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6)." Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc); accord Pressley v. Tupperware Long Term Disability Plan, 533 F.3d 334, 336 (4th Cir. 2009); see also U.S. ex rel. Oberg v. Penn. Higher Educ. Assistance Agency, 745 F.3d 131, 148 (4th Cir. 2014). However, because Rule 12(b)(6) "is intended [only] to test the legal adequacy of the complaint, " Richmond, Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993), "[t]his principle only applies ... if all facts necessary to the affirmative defense 'clearly appear[ ] on the face of the complaint.'" Goodman, 494 F.3d at 464 (quoting Forst, 4 F.3d at 250) (emphasis added in Goodman).

         Under limited exceptions, a court may consider documents beyond the complaint without converting the motion to dismiss to one for summary judgment. Goldfarb v. Mayor & City Council of Baltimore, 791 F.3d 500, 508 (4th Cir. 2015). Here, the exhibits appended to the Motion, the Opposition, and the Reply all relate to when Mr. Perry filed his charge of discrimination with the EEOC. Because defendants withdrew their arguments as to the timeliness of plaintiff's EEOC filing, I need not consider the exhibits.

         III. Discussion

         A.

         In Counts I through VI of the Complaint, Mr. Perry claims that defendants violated the ADEA, the ADA, the FLSA, and the FEPA, as well as Maryland common law prohibiting wrongful discharge, by not permitting him to return to work despite his doctor's note authorizing him to do so.[8] Defendants argue that Counts I through VI must be dismissed because federal law required that plaintiff be "medically certified prior to returning to work as a motor coach operator." ECF 14 at 5.

         As a driver of a commercial motor vehicle ("CMV") for a motor carrier, Mr. Perry and his employers are bound by regulations issued by DOT's Federal Motor Carrier Safety Administration ("FMCSA"). See 49 C.F.R. § 391.1(a).

         In N.L.R.B. v. Pessoa Const. Co., 632 F.App'x 760, 763 (4th Cir. 2015) (per curiam), the Fourth Circuit summarized the extensive medical certification regulations promulgated by FMCSA. It said, id. (emphasis added):

Pursuant to the safety regulations of the Federal Motor Carrier Safety Administration ("FMCSA") of the United States Department of Transportation ("DOT"), a CMV driver is required, among other things, to undergo a medical examination and obtain a medical examiner's certificate that he or she is physically qualified to safely operate a CMV. See 49 C.F.R. §§ 391.11(b)(4), 391.41, 391.43, & 391.45. The driver must be medically certified every 24 months. See 49 C.F.R. § 391.45(b)(1). However, if the driver's “ability to perform [his or her] normal duties has been impaired by a physical or mental injury or disease, ” medical certification is again required. 49 C.F.R. § 391.45(c). A driver is not qualified to drive if he has a “current clinical diagnosis of myocardial infarction, angina pectoris, coronary insufficiency, thrombosis, or any other cardiovascular disease of a variety known to be accompanied by syncope, dyspnea, collapse, or congestive cardiac failure.” 49 C.F.R. § 391.41(b)(4).

         In addition, 49 C.F.R. § 391.43(a) provides that "the medical examination must be performed by a medical examiner listed on the National Registry of Certified Medical Examiners under subpart D of part 390 of this chapter." See also 49 C.F.R. ยง 390.5 (requiring that medical examinations conducted on and after May 21, 2014, be performed by "an individual certified by ...


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