United States District Court, D. Maryland
Lipton Hollander, United States District Judge
employment discrimination case, plaintiff Jonathan Magness
has sued his former employer, Harford County (the
“County”), under the Americans with Disabilities
Act of 1990 (“ADA”), codified, as amended, at 42
U.S.C. §§ 12101 et seq., and the
Rehabilitation Act of 1973, codified, as amended, at 29
U.S.C. §§ 791 et seq. See ECF 14-2
(“Amended Complaint”). Magness alleges
discrimination based on disability, hostile work environment,
and retaliation. He avers, inter alia, that he is
“learning disabled, ” has “a low IQ,
” and suffers from limited “neurological”
and “cognitive functioning, ” which impair his
ability to speak and to comprehend. Id. at 2l.
County has moved to dismiss the Amended Complaint. ECF 17
(“Motion”). Plaintiff opposes the Motion (ECF 18,
“Opposition”), and the County replied. ECF 19
(“Reply”). Subsequently, plaintiff filed a
“Motion for Leave to File Surreply.” ECF 20
(“Surreply Motion”). Defendant has not responded
to the Surreply Motion (see Docket), and the time to
do so has expired. See Local Rule 105.2.a
(“[A]ll memoranda in opposition to a motion shall be
filed within fourteen (14) days of the service of the motion
. . . .”).
hearing is necessary to resolve the motions. See
Local Rule 105.6. For the reasons stated below, I shall deny
defendant's Motion in part and grant it in part.
Additionally, I shall deny plaintiff's Surreply Motion,
Factual and Procedural Background
who was 40 years of age when he filed the Amended Complaint,
asserts that he has a “low IQ” and is
“learning disabled.” ECF 14-2 at 2. He “has
been diagnosed with cognitive impairments” that include
“severe word retrieval difficulties, ”
“expressive language delay, ” impaired language
comprehension, and “severe articulation
disorder.” Id. These conditions impair
plaintiff's “speech production” abilities.
Magness also suffers from an “auditory processing
disorder, ” has impaired “reading comprehension,
” and is unable to express himself in writing.
Id. Moreover, Magness is “substantially
limited” in the “functions of the brain, ”
including “neurological” and “cognitive
County employs more than 500 people. Id. at 3.
Plaintiff began working for the County in 1998. Id.
Since that time, he has held several positions. See
Id. at 6-25. For each position, plaintiff was paid at an
hourly rate and performed manual labor, such as
“digging holes, repairing water and sewer lines,
” and working with “concrete and asphalt.”
Id. at 3, 7. During winter, Magness “plowed
with a truck and manually shoveled” snow. Id.
at 7. He also performed road crew work. Id. at 9.
avers that “disability discrimination and
harassment” against him “commenced in
approximately 2007, ” when several of his supervisors
began regularly to call him a
“‘f ------ g idiot'”,
“‘asshole.'” ECF 14-2 at 6-7. The
supervisors who made such comments included Crew Chief David
Gosnell, Crew Chief George Dawson, Crew Leader Ginelle
Johnson, Ed Kimmel, and “George K.” ECF 14-2 at
6.Nondisabled employees were not called such
to plaintiff, in view of “the discriminatory and
harassing conduct of supervisors the County's employees
“were empowered to taunt, tease and harass Mr. Magness
due to his disabilities.” Id. Two of
Magness's coworkers “would smoke cigarettes on the
job (although it was not allowed) and blow smoke in Mr.
Magness's face.” Id. at 6. Plaintiff does
not identify the coworkers who engaged in such conduct.
2007, Magness was a Utility Worker in the Harford County
Water and Sewer Department. Id. at 7-8. However, he
“regularly asked to transfer . . . due to the
disability discrimination and harassment” he
experienced. Id. at 8. Plaintiff submitted
applications to transfer positions and made “written
and oral requests to be transferred.” Id.
However, an unidentified supervisor “refused to release
Mr. Magness for a transfer.” Id.
2009, Matthew Rutherford filed suit in this Court under the
Rehabilitation Act and the ADA. See CCB-9-1562, ECF
1. Magness was not a party to that litigation. Id.
However, during mediation in that case, held on May 18, 2010,
“Magness was identified as a person who was and/or had
been being [sic] discriminated against by the Defendant on
account of a ‘mental' disability.” ECF 14-2
at 4. He avers that “the discrimination against [him]
intensified” after he was mentioned in the May 2010
mediation. ECF 14-2 at 4. Additionally, Magness states that
he was fired by the County in November 2010, “about six
months after the Rutherford mediation.” ECF 14-2 at 4,
interim, in August 2009, unnamed supervisors “misstated
and made intentional errors about Mr. Magness's
attendance” in an attempt to fire him. Id. at
8. However, the County “rescinded its proposed
termination” of plaintiff after he retained an
October 2009, Magness was transferred to a position with the
Harford County Department of Highways. Id. at 9.
Plaintiff does not state whether he applied for this
transfer. As a result of the transfer, plaintiff was
“demoted to a lower job classification - that of a
laborer.” Id. However, plaintiff's pay was
not reduced. Id. Linda Rickey was plaintiff's
new supervisor in the Department of Highways. Id.
From the Amended Complaint, it appears that the transfer
occurred after plaintiff raised claims of discrimination and
harassment against County employees who worked in the Water
and Sewer Department. Id.
unspecified date, Rickey and HR Director Scott Gibson placed
plaintiff on a “supervised sick leave plan.”
Id. at 9. Plaintiff was told that “the sick
leave plan” was responsive to his “attendance
issues.” Id. at 10. However, plaintiff
contends that he did not have attendance issues. Id.
Nor had plaintiff abused the County's sick leave
policies. Id. Under the “supervised sick leave
plan Rickey was “not to waive any lateness for Mr.
Magness” and was to “promptly inform [Gibson] if
Mr. Magness was one-minute late or missed a day from work . .
. .” Id. 9-10. On unspecified dates, but after
the “supervised sick leave plan” was implemented,
plaintiff was twice late to work. Id. at 10. The
first time he was late by approximately fifteen minutes, and
the second time by approximately three minutes. Id.
However, each time plaintiff had called the County to inform
his supervisor that he would be a few minutes late.
Id. Plaintiff received a written warning for each
late arrival and was “placed on unpaid leave for which
he has not received back pay. Id. at 11. Plaintiff
provides no dates as to these incidents, however.
January 2010, plaintiff transferred to the Division of Litter
Control, where his duties related to the operations of a
landfill. Id. at 11. Although plaintiff does not say
so explicitly, it appears that he did not request this
transfer. Id. He states that, by transferring him to
the Division of Litter Control, the County was “trying
to ‘park' its mentally disabled workers in the
Landfill . . . .” Id.
Johnson was plaintiff's supervisor in the Division of
Litter Control and Ginelle Johnson was his Crew Leader.
Id. at 11. Plaintiff had two coworkers, Laura Costa
and Gregg Henn, who “at various times, and with the
knowledge and/or approval” of Ginelle, called plaintiff
a “‘dumb redneck'”,
“‘dumb.'” Id. at 12. They also
asked plaintiff, “‘when are you going to talk
right[?]'” Id. Additionally, Costa
“made fun” of plaintiff's “speech
impediment” by asking him to “repeat what he had
just said.” On an unspecified date, plaintiff informed,
inter alia, Rex McDowell, the Union Shop Steward,
about “the discrimination and harassment” he
experienced in the Division of Litter Control. Id.
at 13. On May 24, 2010, McDowell met with Gibson and County
Attorney Deborah Duvall. Id. At that meeting,
McDowell stated that he was “aware” that Magness
“was being harassed, bullied and picked on because of
his disability.” Id.
26, 2010, Magness's parents received an anonymous
handwritten letter, stating, ECF 14-2 at 14 (capitals in
original): “JONATHAN MAGNESS BRAGS ABOUT HOW HE SLEEPS
ON THE JOB IN HIS EMPLOY [sic] WITH HARFORD COUNTY GOVT. HE
SAYS HE DOES SO BECAUE [sic] HE CAN WORK AT THE FAMILY FARM
IN BEL AIR & HICKORY, I.E. HE RUNS THE EQUIPMENT AT
NIGHT.” The letter also indicated that it had been
“Sent to [the] County Executive.” Id.
Plaintiff provided the County's HR director with the
original letter. Id. According to plaintiff, the
County did not investigate the incident. Id.
avers that, between June and November 2010, Henn and Costa
“‘doubled-down' on epithets and name calling
directed against and about” Magness. Id. at
15. Plaintiff reported Henn and Costa to McDowell, who met
with Gerald Scanlon, the Chief of Solid Waste for Harford
County, to discuss the “disability-related
discrimination and harassment.” Id.
gave Magness a verbal warning on July 2, 2010, as well as a
written warning, after he left the job site and drove his
personal truck to a nearby Wendy's restaurant to purchase
lunch. Id. at 15-16. According to plaintiff, Costa
laughed at him when he was being disciplined by Ginelle.
Id. at 16. After counsel for plaintiff contacted
Gibson, the verbal and written warnings were rescinded.
Id. at 16-17. However, “harassment”
against Magness “escalated” thereafter.
Id. at 17.
September 3, 2010, plaintiff went to the dump to unload
trash. Id. at 18. There, he spoke with a County
coworker, who was also Henn's girlfriend, and he referred
to Henn as “‘queer boy'” and
“‘bitch.'” Id. Plaintiff had
previously heard this coworker use such “vulgar
language.” Id. However, the coworker
immediately reported Magness's statements by calling
“an employee hotline.” Id. Within hours,
plaintiff met with an unidentified “HR
Representative” to discuss the incident. Id.
Magness apologized but was not permitted to “explain
what he meant by using the at-issue term[s].”
the County had “previously agreed” that plaintiff
was to have a “designated ‘advocate' present
in any meeting with HR” as “an accommodation for
his known disability plaintiff's designated advocate was
not at the meeting on September 3, 2010. Id. at
19.Defendant did not permit plaintiff to ask
his designated advocate to come to the meeting. Id.
Nor did defendant ask the designated advocate to attend the
the meeting of September 3, 2010, the County interviewed two
of plaintiff's colleagues. The first colleague, who is
identified by plaintiff as “CW1 indicated that she did
not believe Magness had intended to “disparage”
Henn during the incident at the dump on September 3, 2010.
Id. at 20. The second colleague, identified as
“CW2 reported that “Magness had complained”
about Ginelle harassing him. Id.
October 19, 2010, Gibson informed plaintiff that he
“should be terminated for the claimed inappropriate
language.” Id. at 19. By letter dated October
27, 2010, the County notified plaintiff that he would be
terminated, effective November 1, 2010. Id. at 21.
filed a charge of discrimination with the Maryland Commission
on Human Relations in January 2011 (“First
Charge”), naming the “Harford County
Government” as the respondent. See ECF 14-2 at
4-5; see also ECF 1-1 (January 2011 Charge). In the
First Charge, he marked boxes for retaliation and
discrimination based on disability. ECF 1-1. He also
indicated that the “[e]arliest” date on which
discrimination occurred was January 1, 2007, and the
“[l]attest” date of discrimination was November
1, 2010. Id. Plaintiff did not check the box to
indicate that he was alleging a “continuing
portion of the First Charge dedicated to the
“particulars” of plaintiff's claims, Magness
I. I began my employment with above named employer June 3,
1998. My position was Laborer. Beginning in 2007, I was
continuously harassed by supervisors and co-workers. I was
called names such as “retard, dumb farmer, idiot,
asshole and fucking retard.” I was continuously taken
advantage of and disciplined inappropriately because of my
disability. On or about May 18, 2010, my name was brought up
in a discrimination investigation; thereafter the harassment
intensified. On May 26, 2010, a letter was sent to my home
with untrue and career damaging allegations. Co-workers were
told to watch out for me. Supervisors began to target me for
disciplinary action. I was not given appropriate work
equipment to do my job. On or about September 3, 2010, I was
interrogated without reasonable accommodation of having my
advocate present. On November 1, 2010, I was discharged.
II. I was given no reason for denial of reasonable
accommodation with regard to my disability. I was discharged
for using derogatory comments.
III. I believe I have been discriminated against because of
my disability in violation of the Americans with Disabilities
Act Amendments Act of 2008, with respect to harassment,
discharge and reasonable accommodation. In addition I believe
I have been retaliated against for engaging in a protected
activity with respect to harassment and discharge.
“public hearing” about plaintiff's
termination was set for January 25, 2011. Id. at 22.
However, “four days before” the hearing, the
County rescinded plaintiff's termination. Id.
Magness alleges that after he was reinstated in January 2011,
Ginelle “continually ‘stared [him]
down.'” Id. at 22. He also avers that,
because of his disability, the County did not permit him to
drive a County vehicle after he was reinstated. Id.
in 2012, Magness “formally applied for at least 17
different positions within the County Government” and
made “numerous informal attempts at
transferring.” Id. at 23; see
also ECF 1-4 (listing the positions for which
plaintiff submitted formal applications).
to plaintiff, the County has “allowed other employees
to transfer to positions without submitting formal
applications, without requiring an interview, and/or without
any job announcement for the transferred-into
position.” ECF 14-2 at 23.
Equal Employment Opportunity Commission (“EEOC”)
issued a “Determination” on April 30, 2014,
pertaining to plaintiff's First Charge. See ECF
The Determination stated, in part, ECF 1-2 at 3:
“[T]here is reasonable cause to believe [Magness] was
subjected to harassment, a hostile work environment,
discipline, unequal terms and conditions of employment,
discharge, and denied reasonable accommodation because of his
disability and in retaliation for engaging in protected
activity, ” in violation of the ADA. The Determination
also indicated that the EEOC would initiate settlement
discussions between the parties. Id. However, the
parties did not reach conciliation. See ECF 1-3
(Notice of Right to Sue).
2014, the County returned Magness to a position under the
direct supervision of Ginelle. ECF 14-2 at 23. Plaintiff does
not specify the title of the new position. Nor does he
provide the date on which he started the position. However,
he states that on June 10, 2014, he objected, in writing, to
the reassignment. Id.
2015, the County “‘outsourced'” the
“Landfill, Mulch, and Compost work within the
Department of Solid Waste where plaintiff was then working.
Id. at 23. Plaintiff does not expound on the details
of the outsourcing. However, plaintiff states that he was
terminated from employment with the County as a result of the
outsourcing. ECF 14-2 at 23.
plaintiff's termination, Magness “applied for
and/or expressed interest in several positions outside the
Department of Solid Waste.” Id. at 24; see
also ECF 1-4. Magness was not hired, notwithstanding
that he was allegedly qualified for the positions. ECF 14-2
“[o]f the approximate 26 hourly paid employees whom
[sic] lost their jobs, Defendant has found jobs for all of
them except for Mr. Magness and another person who was one of
the oldest workers in an adversely affected hourly
position.” Id. at 24. Plaintiff avers that the
County “hired nondisabled persons for the positions for
which Mr. Magness applied and for which Mr. Magness was
better qualified.” Id. Moreover, he states
that the County “made positions available for other
nondisabled workers or workers who did not complain about
discrimination and who had been laid off, without postings or
with the decision already made to hire certain workers
without any legitimate competitive process.”
Id. at 25.
letter dated June 9, 2016 (ECF 1-3), plaintiff was issued a
Notice of Right to Sue as to his First Charge. Plaintiff
timely filed suit on ...