United States District Court, D. Maryland
Lipton Hollander United States District Judge
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"),
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.
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.
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. Defendants replied (ECF 22,
"Reply"), and submitted another exhibit. ECF 22-1.
hearing is necessary to resolve the Motion. See
Local Rule 105.6. For the reasons that follow, I shall grant
Factual and Procedural Background
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.
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.
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.
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.
November 17, 2014, Ms. Nutter informed plaintiff that Dr.
Liva,  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.
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.
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.
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'
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."
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.
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." 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.
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.
Standard of Review
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."
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,
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
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
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).
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
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.
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. 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.
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.
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. §
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. § 390.5 (requiring that
medical examinations conducted on and after May 21, 2014, be
performed by "an individual certified by ...