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Loconte v. Montgomery County

United States District Court, D. Maryland, Southern Division

August 1, 2018

ANTHONY LOCONTE, Plaintiff,
v.
MONTGOMERY COUNTY, MARYLAND, Defendant.

          MEMORANDUM OPINION AND ORDER

          PAUL W. GRIMM UNITED STATES DISTRICT JUDGE

         Defendant Montgomery County, Maryland (the “County”) hired Plaintiff Anthony Loconte as a Hazmat Permitting Program Manager in July 2005 and terminated his employment on January 2, 2015. Compl. ¶¶ 6, 51-52. ECF No. 1. Believing that his termination, as well as his supervisors' treatment of him leading up to his termination, was discriminatory, in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 - 12213, Loconte filed an EEOC Charge and then this lawsuit. Id. ¶¶ 4-5; EEOC Charge, ECF No. 7-1. The County has moved to dismiss, arguing that Loconte's EEOC Charge was not timely and he failed to exhaust his administrative remedies as to his retaliation claim. ECF No. 14. Because there is evidence that Loconte's EEOC Charge was timely and that it included the retaliation claim, the County's Motion to Dismiss, construed as a motion for summary judgment with regard to timeliness and otherwise treated as a motion to dismiss, is denied.

         Background

         Loconte alleges that he sustained a right knee injury in November 2011, Compl. ¶ 9, and was diagnosed with Complex Regional Pain Syndrome, also known as Reflex Sympathetic Dystrophy, id. ¶ 11. He claims that, in 2013, he “noted a spread in the disease, ” which “forced [him] to limp favoring his left leg and wear a full leg immobility brace.” Id. ¶ 14. According to Loconte, at that time, he had been receiving consistently “average to above average performance” evaluations throughout his employment. Id. ¶¶ 7, 22.

         Loconte claims that, with the increase in his pain from his disability, he repeatedly sought accommodations, including the ability to work a flex schedule and telecommute one day per week to decrease the amount of time he spent commuting, as sitting in a car exacerbated his symptoms. Id. ¶¶ 16, 17, 25-27. According to Loconte, not only were his requests ignored, but immediately after he formally requested an accommodation in August 2014, he received a “Notice of Intent to Terminate” on September 2, 2014, which mentioned his disability as “a consideration for their decision.” Id. ¶¶ 28-29. Loconte, who was placed on administrative leave, appealed the decision, and the three-member panel did not agree with the decision to terminate his employment. Id. ¶¶ 30, 32. Nevertheless, he remained on administrative leave, and in his view, his “supervisors engaged in a bizarre and sustained campaign of retaliation, intimidation, harassment and bullying to force the Plaintiff[']s resignation, ” for example by requiring him to make a three-hour round trip car ride to report to work for an “ethics investigation” that they did not have the authority to conduct. Id. ¶¶ 36-41.

         Loconte alleges that he repeatedly emailed his supervisors, asking to return to work, but he was ignored. Compl. ¶¶ 34, 35, 43. He received a new termination notice on December 19, 2014, which eliminated the reference to his disability. Id. ¶ 44. That notice was rescinded and replaced with a December 26, 2014 notice of “termination for unsubstantiated ethics violations, ” and his termination became final on January 2, 2015. Id. ¶¶ 51-52.

         Loconte alleges that he filed his EEOC Charge “around September 2015.” Compl. ¶ 1. His EEOC Charge, which was not received until November 12, 2015, includes a “Filing of Charges” as an attachment; the heading states that it was submitted to the EEOC on August 27, 2015 via certified mail. Filing of Charges 1, EEOC Charge Att., ECF No. 7-1, at 3-5. The EEOC received the Filing of Charges on September 11, 2015. Email Corresp. from EEOC, ECF No. 9-1 (acknowledging receipt).

         In it, Loconte alleged disability discrimination in violation of the ADA. Filing of Charges, ECF No. 7-1, at 3, 4. He also alleged that he informed his supervisors of the “progression of the disease” and

Defendants responded by informing the plaintiff that he was ‘not dependable' and commenced disciplinary action on the Plaintiff for what they interpreted as misconduct. The plaintiff protested each time and clearly informed his supervisors that he felt his disability and/or the medications he was taking were contributing to the problem. The Defendants responded by issuing a “Notice of intent to Terminate” on September 2, 2014 and the Plaintiff was placed on administrative leave.

Id. at 4. He claimed that the County “wrongfully terminated him without having addressed all appropriate reasonable accommodation requests made by the Plaintiff as required by law.” Id. at 4-5. Additionally, he claimed that “[i]mmediately” after he challenged the September 2, 2014 notice of termination, the Defendants engaged in a campaign of harassment to force the Plaintiff[']s resignation.” Id. at 4.

         Loconte signed his formal EEOC Charge on November 5, 2015, and the EEOC received it on November 12, 2015. EEOC Charge, ECF No. 7-1. On that Charge, he only checked the box next to “disability” discrimination; he did not check the “retaliation” box. After receiving his “Notice of Right to Sue” from the EEOC, he filed suit in this Court, claiming disability discrimination, in the form of “bullying, intimidation, harassment, retaliation and eventual wrongful termination, ” in violation of the ADA. See Compl. ¶¶ 4-5; see also Pl.'s Opp'n 3.

         The County, insisting that Loconte did not file his EEOC Charge until November 12, 2015, has moved to dismiss, based on Loconte's failure to file his EEOC Charge within 300 days of any of the alleged ADA violations, the latest being his January 2, 2015 termination. ECF No. 14. It also argues that the Court must dismiss the retaliation claim because Loconte did not include that claim in his EEOC Charge. The parties fully briefed the motion. ECF Nos. 14-1, 18, 19. A hearing is not necessary. See Loc. R. 105.6.

         Standard of Review

         Pursuant to Rule 12(b)(6), a complaint is subject to dismissal if it “fail[s] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), and must state “a plausible claim for relief, ” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Rule 12(b)(6)'s purpose “is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a ...


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