Barkhorn v. Ports America of Baltimore (Chesapeake) et al
Filing
132
MEMORANDUM OPINION AND ORDER granting in part and denying in part 116 Motion of Defendant for Summary Judgment. Signed by Magistrate Judge Susan K. Gauvey on 6/14/2012. (c/m pro se plaintiff Ruff 6/14/2012; bf2, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
RONALD BARKHORN, ET AL.
Plaintiffs
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v.
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PORTS AMERICAN CHESAPEAKE, LLC*
Defendant.
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CIVIL NO. SKG-10-750
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MEMORANDUM OPINION AND ORDER
Plaintiffs, Ronald Barkhorn, John Delawder, Richard
Delawder, Michael Shultz, and James Ruff, are former and current
employees of defendant, Ports America Chesapeake, LLC (“PAC”).
(ECF No. 83, 10-11). Plaintiffs filed suit against PAC on March
25, 2010.(ECF No. 1). The current amended complaint alleges
violations of the associational provision of Title I of the ADA,
retaliatory treatment following Barkhorn’s EEOC filing, race
discrimination under Title VII, disability discrimination under
Maryland law, and violations of § 504 of the Rehabilitation Act
including associational discrimination violations.
(ECF No.
83).
On March 25, 2011, PAC filed a motion for summary judgment,
arguing, inter alia, that plaintiffs’ ADA claim lacked merit.
(ECF No. 36-1, 24-26). By order dated September 26, 2011, the
Court granted PAC’s motion with respect to plaintiffs’ Title VII
1
claim without prejudice,1 and limited plaintiffs’ ADA claims of
associational discrimination to discrimination occurring on or
after January 1, 2009, but denied summary judgment as to all
other claims. (ECF No. 104).
On January 11, 2012, PAC filed the pending motion for
summary judgment against Richard Delawder, asserting four
grounds. (ECF No. 116).
First, based on the prior ruling that
no ADA associational right existed prior to January 1, 2009,
defendant argues that Mr. Delawder has no ADA associational
claim because he retired on June 30, 2008.
Defendant argues that
the prior ruling bars Richard Delawder’s associational claims
under the Rehabilitation Act as well as the ADA.
1, 5).
(ECF No. 116-
However, the defendant did not move for summary judgment
on the Rehabilitation Act claim.
Moreover, the Court’s prior
ruling as to the January 1, 2009 cut-off date was limited to the
ADA.
6).
(See ECF No.
103, 11-14; ECF No. 104).
(ECF No. 116-1, 4-
Second, the defendant argues that Mr. Delawder’s claim
under the Rehabilitation Act is similarly without merit, as it
is subject to the same interpretation as the ADA.
Third,
defendant challenges Delawder’s associational claims under
1
Plaintiffs conceded that they failed to administratively
exhaust their claim of racial discrimination under Title VII
prior to filing the case, and requested that this claim be
dismissed without prejudice. (ECF No. 103, 4). The Court did
so.
2
Maryland law, contending that the Maryland anti-discrimination
statute, Md. Code Ann. State Gov’t § 20-606(a), does not contain
a cause of action for associational discrimination.
116-1, 6).
(ECF No.
Last, defendant argues that Richard Delawder’s
retaliation claim lacks merit because he retired before Barkhorn
filed the EEOC charges. (Id. at 7).
Mr. Delawder’s response only addresses defendant’s first
argument.
He contends that the prior ruling as to ADA
associational discrimination, upon which defendant’s first
argument rests, conflicts with applicable case law and
regulations.
(ECF No. 124, 2).
For the reasons set forth below, the Court DENIES IN PART
and GRANTS IN PART PAC’s motion.
I.
Legal Standard
Summary judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A genuine
dispute remains “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The only facts
that are properly considered “material” are those that might
affect the outcome of the case under the governing law.
Id. The
party moving for summary judgment has the burden of
demonstrating the absence of any genuine issue of material fact.
3
Fed. R. Civ. P. 56(a); Pulliam Inv. Co. v. Cameo Props., 810
F.2d 1282, 1286 (4th Cir. 1987).
Where there are no factual
issues pertinent to the defendant's motion on the principal
claims in dispute, the Court must determine whether summary
judgment is appropriate as a matter of law. Fed. R. Civ. P.
56(c); see also Nixon Uniform Service, Inc. v. American
Directory Service Agency, Inc., 693 F. Supp. 367, 368 (D. Md.
1988).
II.
Discussion
There are no disputes of fact before the Court. The issues
raised are purely legal, and the Court rules on each as a matter
of law.
A. Associational Discrimination Under the ADA
First, the Court must determine whether Mr. Delawder’s ADA
associational discrimination claims are foreclosed based on this
Court’s prior ruling that ADA associational discrimination
claims are limited to pre-January 1, 2009 actions.
For the
reasons set forth below, and pursuant to this Court’s authority
under Rule 54(b) of the Federal Rules of Civil Procedure, the
Court hereby amends the prior ruling as to pre-2009 ADA
associational discrimination claims, and denies summary judgment
as to those claims.
The Court finds that Congress intended to prohibit
associational discrimination as part of the original 1990 ADA
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Act.
42 U.S.C. § 12112(b)(4) prohibits discrimination by
“excluding or otherwise denying equal jobs or benefits to a
qualified individual because of the known disability of an
individual with whom the qualified individual is known to have a
relationship or association[.]”2
(emphasis added).
was part of the original ADA as enacted in 1990.
336, §102(b)(4), 104 Stat. 327, 332 (1990).
This clause
See P.L. 101-
The original ADA
also included the following provision in § 12112(a) of the same
section:
No covered entity shall discriminate against
a qualified individual with a disability
because of the disability of such individual
in regard to job application procedures, the
hiring,
advancement,
or
discharge
of
employees,
employee
compensation,
job
training, and other terms, conditions, and
privileges of employment.
P.L. 101-336, § 102(a), 104 Stat. 327, 331-32 (1990)
(emphasis added). The conflict in the plain language between
subsection (b)(4) and the original subsection (a) is
apparent.
In 2008, § 12112(a) was amended to read as
follows:
No covered entity shall discriminate against
a qualified individual on the basis of
disability in regard to job application
2
The ADA defines a qualified individual as “an individual who,
with or without reasonable accommodation, can perform the
essential functions of the employment position that such
individual holds or desires.” 42 U.S.C. § 12111(8).
5
procedures, the hiring, advancement, or
discharge
of
employees,
employee
compensation, job training, and other terms,
conditions, and privileges of employment.
42 U.S.C. § 12112(a); P.L. 110-325, §§ 5(1)(a) and 8, 122 Stat.
3553, 3557, 3559 (2008).
This new language, of course,
recognizes discrimination against a qualified individual due to
the disability of others, not simply the disability of the
qualified individual himself or herself.
The amendment
reconciled the apparent conflict between subsection (b)(4) and
subsection (a).
However, under accepted principles of statutory
interpretation, the statute, prior to the amendment is properly
read as establishing a claim of associational discrimination
when originally passed.
First, the canon of statutory
interpretation known as generalia specialibus non derogant,
meaning general provisions do not qualify specific ones, applies
here.
See, e.g., Townsend v. Little, 109 U.S. 504, 512, 3 S.
Ct. 357, 27 L. Ed. 1012 (1883) (noting that when "general and
specific provisions" are "in apparent contradiction, whether in
the same or different statutes," the specific will "qualify . .
. the general"); S.C. Dep't of Health & Envtl. Control v.
Commerce & Indus. Ins. Co., 372 F.3d 245, 258 (4th Cir. 2004)
(“Pursuant to elementary principles of statutory construction,
unless the legislature has indicated that it intends otherwise,
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a specific statutory provision controls a more general one.”).
Subsection (a) of § 12112 states the “[g]eneral rule” while
subsection (b) sets out the “[c]onstruction [of the general
rule.]” See 42 U.S.C. § 12112(a)-(b).
Subsection (b)(4)
pertains explicitly and specifically to associational
discrimination. See 42 U.S.C. § 12112(b)(4).
Thus, where the
question of associational discrimination before 2009 is
concerned, subsection (b)(4) takes precedence over subsection
(a).
Second, considering § 12112 as a whole, not just focusing
on § 12112(a), similarly results in a finding of associational
discrimination.
The leading treatise on statutory
interpretation explains that
A statute is passed as a whole and not in
parts or sections and is animated by one
general purpose and intent.
Consequently,
each part of section should be construed in
connection with every other part or section
to produce a harmonious whole. Thus it is
not proper to confine interpretation to the
one section to be construed.
2A Norman J. Singer, Sutherland Statutes and Statutory
Construction § 46:5 (7th ed.).
In Hartog v. Wasatch Academy,
the Tenth Circuit properly employed this principle in its
analysis of subsection (b)(4) and pre-amendment subsection (a):
Title I of the ADA, which governs employment
relationships, generally provides that "no
covered entity shall discriminate against a
qualified
individual
with
a
disability
7
because of the disability of such individual
in regard to . . . discharge of employees .
. . and other terms, conditions, and
privileges of employment."
42 U.S.C. §
12112(a)
(1994)
(footnote
added).
This
provision, standing alone, would provide no
protection to Den Hartog, who does not
suffer
from
any
disability.
Section
102(b)(4) of the ADA, however, defines
"discriminate" to include "excluding or
otherwise denying equal jobs or benefits to
a qualified individual because of the known
disability of an individual with whom the
qualified individual is known to have a
relationship or association." 42 U.S.C. §
12112(b)(4) (1994) (emphasis added) (the
"association provision").
129 F.3d 1076, 1081-82 (10th Cir. 1997) (emphasis added).
Accordingly, the Tenth Circuit did not negate any statutory
provision, but harmonized these two statutory provisions, as
principles of statutory construction demand.
Third, the amendment should be applied retroactively, in
any event.
The determination of whether the amendment to
subsection (a) applies retroactively turns on whether the
amendment was a “clarifying amendment” or a “substantive
amendment.” As explained in Sutherland,
courts presume that provisions added by [an]
amendment which affect substantive rights
are intended to operate prospectively. Where
the change in the law is ‘substantive’
rather than ‘procedural,’ a presumption of
prospectivity can be rebutted only by the
act itself. . . . . However . . . when the
purpose of amendment is to clarify the
meaning of an earlier enactment, . . .
provisions added by amendment that affect
procedural rights—legal remedies—apply to
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all cases pending at the time of its
enactment
and
all
those
commenced
subsequently. This is true whether the
substantive rights sought to be enforced
accrued
prior
or
subsequent
to
the
amendment, unless a vested right would be
impaired by the amendment.
1A Norman J. Singer, Sutherland Statutes and Statutory
Construction § 22:36 (7th ed.); see also Brown v. Thompson, 374
F.3d 253, 259 & n.2 (4th Cir. 2004) (citations omitted).
In
other words, a clarifying amendment is given retroactive effect,
while a substantive amendment is not.
The amendment to
subsection (a) was clearly intended to resolve the conflict with
subsection (b)(4), and was not substantive.
Thus, it applies
retroactively.
In sum, the Court finds that the language of § 12112, when
analyzed under these principles of statutory construction,
clearly and unambiguously permits a cause of action for pre-2009
associational discrimination, and this Court “must give effect
to the unambiguously expressed intent of Congress.” Chevron
U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837,
842-43 (1984).
Additionally, this construction is consistent with the
expert view of the EEOC, the federal agency administering the
law in its regulations:
It is unlawful for a covered entity to
exclude or deny equal jobs or benefits to,
or
otherwise
discriminate
against,
a
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qualified individual because of the known
disability of an individual with whom the
qualified individual is known to have a
family,
business,
social
or
other
relationship or association.
29 C.F.R. 1630.8.
The regulation was promulgated in 1991, long
before the amendment to § 12112. See 56 F.R. 35726 (1991).
Thus, even if § 12112 was ambiguous on its face prior to 2009
(and, again, the Court concludes that it was not), this Court
would defer to EEOC expertise as expressed in 29 C.F.R. 1630.8
and conclude that Congress intended a cause of action for
associational discrimination before 2009.
See Chevron, 467 U.S.
at 843 (holding that if a statute is silent or ambiguous, courts
must defer to the administering agency’s interpretation of the
statute so long as the interpretation is based on a permissible
construction of the statute).
Finally, several pre-2009 federal appellate decisions
reached this conclusion, albeit with little discussion.
have
See A
Helping Hand, LLC v. Baltimore County, Maryland, 515 F.3d 356,
363-64 (4th Cir. 2008) (acknowledging that ADA Titles I and III3
explicitly permit associational discrimination causes of action,
and holding that Title II also does in certain circumstances);
3
Section 12112(b)(4) is part of Title I of the ADA, which
prohibits discrimination in the employment setting. See 42
U.S.C. §§ 12111-12117. Title II prohibits disability
discrimination in public services. See 42 U.S.C. §§ 1213112165. Title III applies to public accommodations for disabled
persons. See 42 U.S.C. §§ 12182-12189.
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Fonner v. Fairfax County, VA, 415 F.3d 325, 332-33 (4th Cir.
2005) (acknowledging a cause of action for ADA Titles I and II,
but providing no holding as to Title II); Freilich v. Upper
Chesapeake Health, Inc., 313 F.3d 205, 215 (4th Cir. 2002)
(acknowledging a cause of action for associational
discrimination under ADA Title I, and looking to that provision
for guidance even though suit was brought under Title III);
Ennis v. Nat’l Ass’n of Bus. and Educ. Radio, Inc., 53 F.3d 55,
59-61 (4th Cir. 1995) (acknowledging existence of Title I ADA
associational discrimination cause of action, but granting
summary judgment after finding no triable issues of fact as to
the employer’s knowledge of alleged disability); Tyndall v.
Nat’l Educ. Centers, 31 F.3d 209, 214 (4th Cir. 1994)
(acknowledging ADA Title I associational discrimination cause of
action but finding no liability under the facts of that case).
Accordingly, and pursuant to Rule 54(b), the Court’s prior
determination as to pre-2009 associational discrimination claims
is hereby revised to permit such claims to proceed.
Consistent
with that revision, defendant’s motion for summary judgment as
to Delawder’s ADA associational discrimination claim is DENIED.
B. Associational Discrimination Under the Rehabilitation
Act
Defendant appears to concede that even though the
Rehabilitation Act does not contain an explicit associational
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discrimination clause, the Act does generally permit a cause of
action for associational discrimination. (ECF No. 116-1, 5-6)
(citing Oliveras-Sifre v. Puerto Rico Dep’t of Health, 38 F.
Supp. 2d 91, 100 n.3 (D.P.R. 1999), aff’d, 214 F.3d 23 (1st Cir.
2000)).
However, defendant argues that the prior decision as to
pre-2009 claims under the ADA also bars Mr. Delawder’s pre-2009
claims under § 504 of the Rehabilitation Act, 29 U.S.C. § 701,
reasoning that “[t]he standards used to determine whether an
employer has been discriminated [against] under the
Rehabilitation Act are the same standards applied under the
ADA.”
(ECF No. 116-1, 5; see also 29 U.S.C. § 794(d) ("[T]he
standards used to determine whether [Section 504 of the
Rehabilitation Act] has been violated in a complaint alleging
employment discrimination under this section shall be the
standards applied under Title I of the Americans with
Disabilities Act of 1990.”)).
This argument fails because the prior decision on which it
hinges has been revised to permit pre-2009 associational
discrimination claims under the ADA.
In any event, the prior
decision as to the pre-2009 issues was limited to the ADA, (ECF
No. 103, 11-14), and rightly so.
The language conflict between
subsection (b)(4) and the subsection (a) was confined to the
ADA.
There was no parallel conflict within the Rehabilitation
Act.
Indeed, the Rehabilitation Act does not even contain an
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explicit associational discrimination clause. See 29 U.S.C. §
701.
Moreover, and as discussed in Part A, despite that
apparent conflict, the Fourth Circuit acknowledged a cause of
action for pre-2009 associational discrimination under the ADA.
Thus, the Fourth Circuit’s recognition of pre-2009 associational
discrimination under the ADA would strongly suggest – indeed
arguably compel - recognition of pre-2009 associational
discrimination under the Rehabilitation Act.4
Thus, summary
judgment as to associational discrimination under the
Rehabilitation Act is DENIED.
C. Associational Discrimination Under Maryland Law
Defendant argues that Mr. Delawder lacks a cause of action
for associational discrimination under the Maryland antidiscrimination statute, Md. State Gov’t Code Ann., § 20-606,
because, unlike the ADA, the Maryland statute does not contain
an explicit cause of action for associational discrimination.
(ECF No. 116-1, 6).
Defendant argues further that § 20-606
refers only to an employer’s inability to do some action because
of the individual’s disability or other salient trait.
defendant provides no authority for this argument.
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However,
Mr. Delawder
The Court is not aware of any Fourth Circuit decisions
recognizing associational discrimination under the
Rehabilitation Act. Defendant did not provide any case law, in
any Circuit, to support an argument that the Rehabilitation Act
does not include associational discrimination, before or after
January 11, 2009.
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has failed to respond to defendant’s position.
In relevant part, § 20-606(a) provides as follows:
(a) Employers.
--
An
employer
may
not:
(1) fail or refuse to hire, discharge, or
otherwise
discriminate
against
any
individual with respect to the individual's
compensation,
terms,
conditions,
or
privileges of employment because of:
(i) the
individual's
race,
color,
religion,
sex,
age,
national
origin,
marital
status,
sexual
orientation,
genetic
information,
or
disability
unrelated in nature and extent so as to
reasonably preclude the performance of the
employment . . . .
Md. State Gov’t Code Ann., § 20-606(a) (emphasis added).
Maryland courts have hardly explored the question of
associational discrimination.
Indeed, the undersigned found
only one Maryland case addressing the issue—Gutwein v. Easton
Publishing Co., 272 Md. 563, 325 A.2d 740 (1974).
There, the
Maryland Court of Appeals held in the context of a race
discrimination case that “instances of discrimination in
employment involving . . . the termination of a white
complainant’s employment because of his association with his
black fiancée are plainly within the contemplation and coverage
of §19(a)[,]” id. at 567, which is the predecessor of § 20606(a). See 2009 Md. Laws 120. Thus, the Court of Appeals has
recognized a cause of action for associational discrimination
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under §20-606(a) despite the absence of an explicit
associational provision in the statute.
Accordingly, summary judgment on the basis of associational
discrimination under Maryland law is DENIED.
D. Retaliation Claims
Lastly, defendant argues that Mr. Delawder lacks a cause of
action for retaliatory conduct in response to Barkhorn’s EEOC
filing. (ECF No. 116-1, 7).
Mr. Delawder voluntarily retired
from PAC on June 30, 2008 because he was suffering from health
problems and disliked the work allocation policies. (ECF No. 932, 2, 4). The retirement occurred before Barkhorn filed charges
with the EEOC for disability and age discrimination on December
17, 2008. Therefore, as a temporal matter, Mr. Delawder could
not have been the victim of any retaliatory conduct by PAC in
response to the EEOC filing.
Thus, defendant’s summary judgment as to Mr. Delawder’s
retaliation claims is GRANTED.
III. Conclusion
For the reasons above, the Court DENIES summary judgment as
to Mr. Delawder’s associational discrimination claims under the
ADA, the Rehabilitation Act, and Maryland law, but GRANTS
summary judgment as to Mr. Delawder’s retaliation claim.
Date: 6/14/12 _______
/s/
15
Susan K. Gauvey
United States Magistrate Judge
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