United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. GRIMM UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
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
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.
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.
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.
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 ...