United States District Court, D. Maryland
LIPTON HOLLANDER UNITED STATES DISTRICT JUDGE.
employment discrimination case, self-represented plaintiff
Gary Niner has sued his former employer, “Garrett
County Public Works, ” under the Americans with
Disabilities Act of 1990 (“ADA”), as amended, 42
U.S.C. §§ 12101 et seq., and the Age
Discrimination in Employment Act (“ADEA”), as
amended, 29 U.S.C. §§ 621 et seq. See ECF
1 (“Complaint”). Several exhibits are appended to
avers, inter alia, that his “right
wrist” was “crushed . . . in 1993 on the job
site” and that he was forty-eight years of age on July
14, 2015, when he was terminated from his position as Line
Locator. Id. at 5-6. According to Niner, he was
demoted and later terminated based on his disability as well
as his age. ECF 1. Further, he alleges retaliation under the
ADA based on his demotion from Crew Leader to Line Locator.
has moved to dismiss the Complaint under Fed.R.Civ.P.
12(b)(1) and 12(b)(6) or, in the alternative, for
pre-discovery summary judgment (ECF 8), supported by a
memorandum of law (ECF 8-1) (collectively, the
“Motion”) and exhibits. See ECF 8-2
through ECF 8-4. Niner opposes the Motion (ECF 10,
“Opposition”), with exhibits. See ECF
10-1 at 3- 21. Defendant has replied. See ECF 11
Court is mindful of its obligation to construe liberally the
pleadings of a pro se litigant, which are “held to less
stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007); see also Sause v. Bauer, U.S., 138 S.Ct.
2561, 2563 (2018); White v. White, 886 F.2d 721,
722-23 (4th Cir. 1989). Nonetheless, no hearing is necessary
to resolve the Motion. See Local Rule 105.6.
reasons that follow, I shall grant the Motion in part and
deny it in part. In particular, I shall grant the Motion as
to the ADA claim of unequal terms and conditions of
employment. However, I shall deny the Motion as to the ADA
claim of retaliation, the ADA claim of disability
discrimination, and the ADEA claim.
Factual and Procedural Background
started working for the Garrett County Department of Public
Works - Utility Division (“DPW” or the
“County”) in 1987. See ECF 1-2 at 11-12
(statement of facts appended to the Complaint) at
DPW is a department within the Garrett County government. ECF
8-1 at 2. Initially, plaintiff worked as a Laborer. ECF 1-2
at 11. On an unspecified date, he became an Equipment
“was injured on the job” on November 4, 1993. ECF
1-2 at 11. On that date, he “was lifting up a heavy
metal tank with a piece of equipment” when the
“chain holding the tank wrapped around [his right]
wrist and crushed it.” Id. Niner does not
specify when he returned to work. In February 2001, Niner
underwent surgery on his right wrist. ECF 1-2 at 11. He
returned to work in May 2001, with “restrictions”
on the types of work he was able to perform. Id. In
particular, Niner was unable to shovel, lift objects weighing
more than 20 or 30 pounds, and could not expose his wrist to
unspecified date, Niner became a Line Locator at DPW. ECF 1-2
at 11. Plaintiff does not explain the nature of his
responsibilities in that role. In May 2005, Niner was
promoted and received a raise. Id. Niner's new
title was Crew Leader/Line Locator. Id. at
12.According to plaintiff, he was still
responsible for his “regular work [as a] Line
Locator.” Id. at 11. However, he gained new
responsibilities with the promotion, including “running
jobsites”, being “in charge of laborers”,
and assuring that “the work was being done to
point in 2006, Niner gave his “employer” and his
supervisor, Ron Harvey, an “updated note” from
Dona Alvarez, M.D., “outlining the same
restrictions” from 2001: “no vibrating, no
shoveling, and no lifting over 30 lbs., sometimes 20 lbs.
with [his] right hand.” ECF 1-2 at 11. Then, in 2008,
Niner gave his “employer” another note written by
Doctor Alvarez, “outlining the same
restrictions.” Id. According to Niner, he
routinely saw Doctor Alvarez about his wrist injury, and his
work “restrictions remained the same throughout the
received the “Locator Achievement Award” in 2013,
which recognized “the best partners in damage
prevention.” ECF 1-2 at 11. According to Niner, the
selection criteria for the Locator Achievement Award
included, in part, id. at 11-12:
• Locator must have ZERO “at fault” damages.
• Locator must have ZERO safety violations . . . .
• Locator must establish proactive working relationships
in damage prevention.
in “the spring of 2014, ” Harvey, plaintiffs
supervisor, “stepped down.” ECF 1-2 at 12.
Subsequently, Brian King became plaintiffs supervisor.
Id. It appears that King's title was Assistant
Division Chief of Maintenance for DPW. See id.
received an “employee evaluation” from King in
February 2015. ECF 1-2 at 12. Niner “noticed on [his]
evaluation that [his] title had changed from Crew Leader/Line
Locator to just Line Locator[.]” Id. Niner
asked King if he was still a Crew Leader. Id.
According to plaintiff, King replied: “‘I
don't know.'” Id.
had his “annual follow up appointment with Dr.
Alvarez” on February 11, 2015. Id. Niner also
obtained a note from Doctor Alvarez, reiterating his work
restrictions. Id. Niner provided his
“employer” with the note on or around February
11, 2015. Id.
in February 2015, Niner was “informed by [his] employer
that [he] was scheduled to see their doctor for an
evaluation” regarding his right hand and wrist.
Id. Plaintiff identified the doctor as James Deren.
Id. According to plaintiff, this was the first time
he had been asked to meet with a County physician.
Id. Plaintiff alleges that a colleague, Thomas
Parker, was also injured while working for DPW, but was
“never asked to see the county doctor.”
Id. Niner avers that DPW was “looking for
excuses to . . . terminate [him] because of [his]
disability.” Id On February 26, 2015, Niner
met with Lamont Pagenhardt, the Garrett County Administrator,
to discuss why he had been asked to meet with Doctor Deren,
and why plaintiffs “employee evaluation”
indicated his job title had changed. ECF 1-2 at 12. According
to Niner, Pagenhardt was unaware that plaintiffs title had
changed. Additionally, Pagenhardt reviewed plaintiffs
“personnel file”, which “still indicated
that [Niner] was a Crew Leader.” ECF 1-2 at 12.
attended the appointment with Doctor Deren on March 2, 2015.
Id. The doctor allegedly “asked why [Niner]
was there and stated there was no reason for the visit since
[Niner's work] restrictions had not changed.”
about March 19, 2015, Niner was “called to the
office” for a “meeting.” ECF 1-2 at 12.
There, he met with Richard Shoemaker, Operations and
Maintenance Chief of DPW; Jay Moyer, Director of DPW; Patrick
Hudnall, Administration and Environmental Chief of DPW; King;
and Pagenhardt. ECF 1-2 at 12. According to
plaintiff, he was told that he “had a bad
attitude.” Id. Additionally, he was told that
he “was just a Line Locator” and that he
“was not to help other coworkers with
problems[.]” When plaintiff asked “why [he] was
being demoted”, Shoemaker replied that the County was
“trying to help [Niner] out because of [his]
hand.” Id. In response, plaintiff said his
“hand had never been an issue in the past several years
and that [he] had been completing [his] duties as a Line
Locator/Crew Leader.” Id.
was on vacation on Friday, July 10, 2015, attending a
“car show” in Carlisle, Pennsylvania with his son
and some of his son's friends, celebrating his son's
birthday. ECF 1-2 at 6-9 (two statements of fact dated July
26, 2015, addressed to Betty Wolford and Adam Rounds,
employees of the “Civil Service Board”, as well
as to the Garrett County Board of Commissioners) at 6.
According to plaintiff, King had approved the vacation time.
date, King called Niner on his work phone. ECF 1-2 at 6-7.
According to Niner, the phone was “on speaker at that
time”, enabling his son to hear the conversation.
Id. King asked when plaintiff “was coming
home”, and also asked if plaintiff would “cover
Travis's [client] call because nobody wants to
volunteer.” Id.; see ECF 1-2 at 10
(Charge of Discrimination, dated July 4, 2016) (identifying
the call as a “client” call). According to
plaintiff, he “cut [his] vacation short” and
returned to Garrett County on the evening of July 10, 2015,
in order to complete the client call later that weekend. ECF
1-2 at 6.
following day, Saturday, July 11, 2015, Niner called King to
ask whether he (Niner) would be paid for time spent making
the client call. Id. According to Niner, King
“said no”, to which Niner said, id. at
6: “I don't think I'm going to do it.”
King asked Niner to find a replacement DPW employee to make
the call. Id. Niner responded, saying he “was
not allowed to tell other employees what to do.”
Id. He then said “goodbye”, ending the
phone call with King. Id. Niner acknowledges that he
“was very upset at that point.” Id. But,
according to Niner, on Sunday July 12, 2015, he decided to
complete the client call, as King had asked him to do,
without pay and while he was on approved vacation time. ECF
1-2 at 6-7; see also ECF 1-2 at 2-5 (Unemployment
Insurance Appeals Decision, dated September 17, 2015) at 2.
was terminated on July 14, 2015. ECF 1-2 at 2. The County
appears to have terminated Niner on the ground that he
“refused to perform his job duties” and used
“profanity” while speaking with King on July 10,
2015, and/or July 11, 2015. Id. at 3. Niner
maintains that he “did not use foul language”
during his conversation with King. ECF 1-2 at 6. Moreover,
Niner's son “overheard the conversation between
[Niner] and Mr. King”, and stated that Niner “did
not use profanity.” Id. at 3.
sought State unemployment insurance benefits after he was
terminated in July 2015. See ECF 1-2 at 2-5. The
County opposed his request, arguing that Niner had been
terminated for “misconduct” that disqualified him
from receiving unemployment benefits, pursuant to Md. Code
(2016 Repl. Vol., 2017 Supp.), § 8-1003 of the Labor
& Employment Article. See ECF 1-2 at 3. The
Division of Appeals within the Maryland Department of Labor,
Licensing and Regulation issued a Decision (id. at
2-5), concluding that the County “provided insufficient
evidence to prove that [Niner] refused to perform his job
duties [or] that profanity was used, in violation of the
employer's rules.” ECF 1-2 at 3. Niner was
therefore deemed “eligible for benefits . . . .”
Id. at 4.
notes that he was employed by DPW for nearly twenty-nine
years before he was terminated. ECF 1-2 at 8. Indeed, he had
worked at DPW “longer than any other employee[.]”
Id. During that time, Niner “never had to sign
any form for any wrong doing.” Id. Nor had he
“received any [such] paperwork.” Id.
Moreover, he had never “received any bad evaluations
until Brian King became supervisor[.]” Id.
January 4, 2016, Niner filed a Charge of Discrimination
(“Charge”) with the Maryland Commission on Civil
Rights (the “Commission”), naming “Garrett
Co. Public Works” as the respondent. See ECF
1-2 at 10. Niner supplemented the Charge with a
“Statement of Facts.” Id. at 11-12. He
claimed that he had been discriminated against based on his
age and his disability. ECF 1-2 at 16. Niner also alleged
that he had suffered retaliation. Id. Plaintiff
stated that the “latest” date on which
discrimination took place was July 14, 2015. Id.
In the “particulars” of the Charge, plaintiff
I began working with Garrett Co. Public Works - Utility
Division on April 22, 1987, as a labor[er] and [was] later
promoted to equipment operator.
I was injured on the job on November 4, 1993, when I was
lifting up a heavy metal tank with a piece of equipment. The
chain holding the tank wrapped around my wrist and crushed
it. I received surgery on my wrist on February 20, 2001 and
in September of 2012, received a disability rating of 54%
loss of use of the right hand. I continued to work with the
following restrictions: no vibrating, no shoveling, and no
lifting over 30 lbs., reduced at times to no lifting over 20
Spring of 2014, a new supervisor was appointed.
February 11, 2015, I had my routine physician visit and
provided my restrictions to the employer.
March 2, 2015, I had to see a company doctor.
July 10-13, 2015, I was on vacation and [was] asked to
contact a coworker [about a client call]. I asked to be paid
for my time and was informed that I would not be paid. I
contacted the client anyway.
On July 14, 2015, I was terminated for violating numerous
rules and regulations and violating policy.
Equal Employment Opportunity Commission (“EEOC”)
issued a Dismissal and Notice of Rights letter on July 21,
2017. See ECF 1-2 at 1 (the “EEOC
Letter”). The EEOC Letter notified plaintiff that a
“lawsuit must be filed WITHIN 90 DAYS
of [his] receipt of this notice; or [his] right to
sue based on this charge will be lost.” Id.
October 6, 2017, Niner filed his employment discrimination
suit against “Garrett County Public Works.” He
alleges that his demotion on March 19, 2015, from Line
Locator/Crew Leader to Line Locator, and his termination on
July 14, 2015, amounted to discrimination, in violation of
the ADA and the ADEA. See ECF 1 at 4-6.
Additionally, plaintiff avers that the medical appointment
with Doctor Deren on March 2, 2015, constituted
“unequal terms and conditions of [his] employment,
” in violation of the ADA. Id. at 5-6.
Further, plaintiff contends that he was demoted to Line
Locator in “retaliation” for providing DPW with a
“letter” from Doctor Alvarez (on an unspecified
date), describing plaintiff's work restrictions.
Id. at 5-6. Niner seeks back pay from the date of
his termination, accrued vacation time and sick days, and
retirement benefits that he “would have been entitled
to but for [his] wrongful termination.” Id. at
Motion seeks to dismiss the Complaint on multiple grounds,
including: (1) that the Garrett County Department of Public
Works is not an entity subject to suit; (2) the claim of
retaliation, and the claim of unequal terms and conditions of
employment, are time barred because they are grounded in
allegations pertaining to events prior to March 10, 2015, the
relevant date for the applicable limitations period; (3)
plaintiff has failed to state a claim of employment