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Niner v. Garrett County Public Works

United States District Court, D. Maryland

August 15, 2018

GARY NINER, Plaintiff,



         In this employment discrimination case, self-represented plaintiff Gary Niner has sued his former employer, “Garrett County Public Works, ”[1] 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 the suit.

         Niner 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. Id.

         Defendant 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 (“Reply”).

         The 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.

         For the 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.

         I. Factual and Procedural Background[2]


         Niner 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 11.[3] 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 Operator. Id.

         Niner “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 vibrations. Id.

         On an 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.[4]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 specification.” Id.

         At some 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 years[.]” Id.

         Niner 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.

         Thereafter, 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.

         Niner 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.

         Plaintiff 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.

         Later 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.

         Plaintiff 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.” Id.

         On or 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.

         Plaintiff 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. Id.

         On that 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.

         The 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.

         Plaintiff 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.

         Niner 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.

         Plaintiff 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.


         On 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.[5] 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 stated, id.:
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 lbs.
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.

         The 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.

         On 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 7.

         The 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 ...

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