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Fenicle v. Towson University

United States District Court, D. Maryland

November 8, 2018

TOWSON UNIVERSITY, et al., Defendants.


          Ellen L. Hollander United States District Judge.

         In this employment discrimination case, plaintiff Ronald Fenicle, a former contract Lecturer at Towson University (“TU”), filed suit against defendants TU and four of its employees, in their individual and official capacities: Lisa Ann Plowfield, Dean of the College of Health Professions; Dr. Diana Emanual, Chair of the Department of Audiology, Speech-Language Pathology and Deaf Studies; Dan Leonard, the former disabilities coordinator of TU; and Dr. Kim Schatzel, the President of TU.[1] ECF 5 (Amended Complaint).

         The Amended Complaint exceeds 40 pages and contains seven counts. The claims are rooted in plaintiff's contention that he was discriminated against because he is deaf; he was denied reasonable accommodations; and he was retaliated against when he was denied a merit increase in August 2014 and when his academic appointment was not renewed in September 2015 for the following academic year.

         In particular, Fenicle asserts claims for violations of Titles I, II, and V of the Americans with Disabilities Act, as amended, 42 U.S.C. § 12101 et seq. (“ADA”) (Counts I, II, and III, respectively); violation of the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq. (Count IV); violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (“Title VII”) (Count V); violation of 42 U.S.C. § 1983 (Count VI); and violation of the Maryland Fair Employment Practices Act (“MFEPA”), Md. Code (2014 Repl. Vol., 2017 Supp.), §§ 20-601 et. seq. of the State Government Article (“S.G.”) (Count VII). Id. ¶¶ 169-254. He seeks prospective injunctive relief, including reinstatement to his position, along with monetary damages.

         Defendants have moved to dismiss most of Fenicle's claims (ECF 8), supported by a memorandum (ECF 8-1) (collectively, the “Motion”). Fenicle opposes the Motion as to Counts I, II, III, and VI. ECF 10 (“Opposition”) at 2. He expressly seeks to withdraw his Title VII claim in Count V. Id. at 19. Defendants have replied. ECF 11 (“Reply”).

         No hearing is necessary to resolve the Motion. See Loc. R. 105.6 (D. Md. 2016). For the reasons that follow, I will grant the Motion, in part.

         I. Factual and Procedural Background[2]

         Fenicle has been deaf since birth and, for the past 15 years, he has suffered from vertigo and migraine headaches. ECF 5, ¶¶ 12-16. Towson University is a public institution for higher education within the University System of Maryland. Id., ¶¶ 3, 17.

         In January 2013, Fenicle was hired by TU as a contract Lecturer for the Spring 2013 term, to teach in the Audiology, Speech-Language Pathology and Deaf Studies Department (“ASLD”). ECF 5, 21. Fenicle's contract was subject to annual renewal, based upon his teaching performance. Id. ¶ 28. In his position as Lecturer, Dr. Emanuel was Fenicle's primary supervisor. Id. ¶ 23.

         In May 2013, Fenicle raised concerns about the doorbell system on the Deaf Studies floor, which is needed to alert a deaf person to a fire. Id. ¶¶ 29, 32. He suggested that it was not in compliance with the ADA. Id. ¶ 29. Thereafter, he continued to express dissatisfaction with the doorbell system and other matters. Id. ¶¶ 36, 93, 99. In August 2013, Fenicle requested a larger computer monitor, claiming that the smaller screen triggered his migraines and vertigo. Id. ¶ 37. Dr. Emanuel denied the request, citing budgetary constraints. Id. Once Fenicle made an official request for a reasonable accommodation in the form of a larger computer monitor, the larger monitor was ordered. Id. ¶¶ 41, 43.

         In Fall 2013, plaintiffs classes were scheduled on Monday, Wednesday, and Friday at 8:00 a.m. Id. ¶ 35. Between 2013 and 2015, Fenicle requested later start times for his scheduled classes (id. ¶ 44), claiming that “bumper-to-bumper traffic would trigger his vertigo.” Id. ¶ 46. Dr. Emanuel told him that he could not start to teach after 10:00 a.m. until the Fall 2014 semester. Id. ¶ 48. Plaintiffs Spring 2014 classes began at 8:00 a.m., three days per week. Id. ¶ 50.

         During the Spring 2014 semester, Fenicle received some complaints from students about their assignment deadlines and grades. Id. ¶¶ 57, 59, 64. Fenicle's classes in the Summer of 2014 were scheduled for later in the morning, as were his classes in the Fall of 2014. Id. ¶¶ 67-68. On August 29, 2014, the ASLD Promotion, Tenure, Reappointment and Merit (“PTRM”) committee determined not to award merit pay to plaintiff, although he was reappointed for the 2015-16 academic year. Id. ¶¶ 69, 72, 73.

         “Dr. Smart” performed a peer evaluation of plaintiff in February 2014. Id. ¶ 54. He received a score of 5 out of 5. Id. In September 2014, Dr. Emanuel conducted a peer evaluation of Fenicle and rated him as “mediocre.” Id. ¶ 76. But, a peer evaluation performed by Dr. Sheryl Cooper was excellent. Id.

         In October 2014, Fenicle sought to move his class start time to 11:00 a.m., to reduce his morning vertigo symptoms, triggered by traffic. Id. ¶¶ 46, 78. Dr. Emanuel stated that she would not move the scheduled start time for the Spring 2015 semester, and denied his request to teach two evening classes in lieu of daytime classes. Id. ¶¶ 79-80. Fenicle renewed his request for the accommodation of a later start time in December 2014, and Dr. Emanuel denied it again, stating that it was too late to modify the Spring 2015 schedule. Id. ¶¶ 88-89.

         In December 2014, plaintiff received his course evaluations for the Fall 2014 term. He received excellent scores for all five of his classes. Id. ¶ 87.

         Fenicle's classes in the Summer of 2015 began at 9:30 a.m. Id. ¶ 104. Beginning in October 2015, Fenicle had several meetings with Dan Leonard, then serving as the ADA Coordinator at TU Id. ¶ 136. Leonard told Fenicle to complete a Faculty and Staff Accommodation Request form for his request to start his classes at a later time. Id. ¶ 138. Dr. Emanuel agreed to alter Fenicle's schedule to begin classes at 11 a.m. or later, beginning in Fall 2015. Id. ¶ 141. In view of the schedule change, plaintiff “did not experience any instances of tardiness for Fall 2015 or Spring 2016 . . . .” Id.

         On August 25, 2015, the PTRM committee decided not to renew Fenicle's appointment for the 2016-17 academic year. Id. ¶ 113. On August 27, 2015, Dr. Emanuel sent a letter to Dean Plowfield, recommending against Fenicle's reappointment as a Lecturer for the 2016-17 school year. Id. ¶ 116. On September 28, 2015, Fenicle received notice of his non-reappointment for the 2016-17 school year. ECF ¶¶ 119-20. Dr. Emanuel informed Fenicle that she would not reconsider her decision. Id. ¶ 122.

         Fenicle sent Dean Plowfield a “Letter of Appeal” on October 18, 2015, regarding his non-reappointment. Id. ¶ 129. Moreover, plaintiff's colleagues wrote a letter in support of him. Id. ¶¶ 130, 131. Nevertheless, Plowfield wrote to Fenicle on October 21, 2015, informing him that Lecturers do not have the right to appeal the PTRM's decision. Id. ¶ 134.

         Plaintiff received formal notification of his non-renewal by letter of December 7, 2015. Id. ¶ 145. That month, he also received excellent course evaluations for the Fall 2015 semester. Id. ¶ 148. However, no peer evaluation was conducted, because his contract was not renewed. Id. ¶ 149.

         Leonard issued a letter to plaintiff on February 8, 2016, stating that he had found no factual basis to support Fenicle's allegations of disability discrimination. Id. ¶ 153. Fenicle appealed Leonard's determination. Id. ¶ 155.

         On April 11, 2016, Dr. Emanuel received a Petition started by TU students, with 728 signatures, “highlighting the positive impact” of plaintiff. Id. ¶ 157. Plaintiff also received excellent course evaluations in May 2016 for the Spring 2016 semester. Id. ¶ 160.

         As a result of plaintiff's non-reappointment, his employment ended in June 2016, at the conclusion of the Spring 2016 term. He filed a complaint of discrimination with the EEOC that month. Id. ¶¶ 163-64.

         On July 14, 2016, Schatzel, the President of TU, denied Fenicle's appeal and affirmed Leonard's decision. Id. ¶ 165. On January 2, 2018, the EEOC issued Fenicle a notice of right to sue. Id. ¶ 10. This suit followed on March 30, 2018. ECF 1.

         II. Legal Standards


         As noted, defendants have moved to dismiss under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, asserting that plaintiff's claims are barred by sovereign immunity.

         Under Rule 12(b)(1), the plaintiff bears the burden of proving, by a preponderance of evidence, the existence of subject matter jurisdiction. See Demetres v. East West Const., Inc., 776 F.3d 271, 272 (4th Cir. 2015); see also The Piney Run Pres. Ass'n v. The Cty. Comm'rs Of Carroll Cty., MD, 523 F.3d 453, 459 (4th Cir. 2008); Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). A Rule 12(b)(1) motion should be granted “only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Clarke v. DynCorp Intern. LLC, 962 F.Supp.2d 781, 786 (D. Md. 2013) (quotation marks and citation omitted).

         The Fourth Circuit recently reiterated that the defense of sovereign immunity is a jurisdictional bar, stating that “‘sovereign immunity deprives federal courts of jurisdiction to hear claims, and a court finding that a party is entitled to sovereign immunity must dismiss the action for lack of subject-matter jurisdiction.'” Cunningham v. Gen. Dynamics Info. Tech., Inc., 888 F.3d 640, 649 (4th Cir. 2018) (quoting Ackerson v. Bean Dredging LLC, 589 F.3d 196, 207 (5th Cir. 2009)). The defendant “bears the burden of demonstrating” sovereign immunity, because it is “akin to an affirmative defense.” Hutto v. S.C. Ret. Sys., 773 F.3d 536, 543 (4th Cir. 2014).

         A challenge to subject matter jurisdiction under Rule 12(b)(1) may proceed “in one of two ways”: either a facial challenge, asserting that the allegations pleaded in the complaint are insufficient to establish subject matter jurisdiction, or a factual challenge, asserting “that the jurisdictional allegations of the complaint [are] not true.” Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (citation omitted) (alteration in original); seeDurden v. United States, 736 F.3d 296, 300 (4th Cir. ...

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