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Magness v. Harford County

United States District Court, D. Maryland

March 27, 2018



          Ellen Lipton Hollander, United States District Judge

         In this 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.

         The 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 . . . .”).

         No 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, as moot.

         I. Factual and Procedural Background[1]

         Magness, 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 functioning.” Id.

         The 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.

         Magness avers that “disability discrimination and harassment” against him “commenced in approximately 2007, ” when several of his supervisors began regularly to call him a “‘retard'”, “‘dumb farmer'”, “‘idiot'”, “‘f ------ g idiot'”, “‘stupid'”, “‘dumb'”, and “‘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.[2]Nondisabled employees were not called such names. Id.

         According 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.

         In 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.

         In June 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, 21.

         In the 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 attorney. Id.

         In 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.

         On an 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.

         In 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.

         Dale Johnson was plaintiff's supervisor in the Division of Litter Control and Ginelle Johnson was his Crew Leader. Id. at 11.[3] 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'”, “‘stupid'”, and “‘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.

         On May 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.

         Plaintiff 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.

         Ginelle 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.

         On 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].” Id.

         Although 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.[4]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 meeting. Id.

         After 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.

         On 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.

         Magness filed a charge of discrimination with the Maryland Commission on Human Relations[5] 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 action.” Id.[6]

         In the portion of the First Charge dedicated to the “particulars” of plaintiff's claims, Magness stated, id.:

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.

         A “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. at 22.

         Beginning 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).[7]

         According 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.

         The Equal Employment Opportunity Commission (“EEOC”) issued a “Determination” on April 30, 2014, pertaining to plaintiff's First Charge. See ECF 1-2.[8] 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).[9]

         In June 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.

         In July 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.

         Following 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 at 24.

         Yet, “[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.

         By 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 ...

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