United States District Court, D. Maryland
L. Hollander United States District Judge.
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. ECF 5 (Amended Complaint).
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.
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.
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
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.
Factual and Procedural Background
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.
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.
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.
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.
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.
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.
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. ¶¶
December 2014, plaintiff received his course evaluations for
the Fall 2014 term. He received excellent scores for all five
of his classes. Id. ¶ 87.
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 . . .
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.
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.
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.
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.
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.
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.
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.
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.
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
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).
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. ...