Higgins v. Maryland Department of Agriculture

Filing 32

MEMORANDUM OPINION. Signed by Judge Benson Everett Legg on 2/28/12. (hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

WILLIAM HIGGINS,
Plaintiff,
v.
MARYLAND DEPARTMENT OF
AGRICULTURE,

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Civil Action No.: L-11-0081

Defendant
o0o
MEMORANDUM OPINION
This is an employment discrimination case brought by Plaintiff William Higgins
(“Higgins”) against the Maryland Department of Agriculture (“MDA”). Higgins, a long-term
employee of the MDA, suffered from a mental illness that caused him to act inappropriately at
work. Eventually, after Higgins’s behavior worsened, the MDA terminated his
employment. Higgins contends that the MDA (i) failed to provide him with a reasonable
accommodation, and (ii) terminated him based on a disability. Pending is the MDA’s Motion to
Dismiss, or, in the Alternative, for Summary Judgment. Docket No. 21. Higgins has filed a
response in opposition to which the MDA has replied. The matter is briefed and ready for
disposition; no hearing is necessary. See Local Rule 105.6 (D. Md. 2011).
First, Higgins has failed to prove that he is a “qualified individual” who is entitled to
relief under the applicable statutes. Second, Higgins’s behavior had become so disruptive that it
could no longer be tolerated. Thus, he was terminated for misconduct and not because of a

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disability. For reasons to follow, the Motion to Dismiss will be GRANTED by separate Order of
even date.
I.

Background

Higgins began serving as the director of the MDA’s animal health laboratory in
Centreville, Maryland (the “CAHL”), in December 1987. Higgins’s most recent direct
supervisor was Nancy Jo Chapman (“Chapman”), the assistant state veterinarian. Chapman, in
turn, reported to Guy Hohenhaus (“Hohenhaus”), the state veterinarian. The CAHL director
investigates public health and infectious disease problems affecting animals on farms in the
Maryland Eastern Shore counties. The director is also responsible for promoting sound and
compassionate animal health practices, overseeing the laboratory and its employees, interacting
with veterinarians and farmers, and collaborating with various government agencies regarding
veterinary services, public health, and bioterrorism issues. Higgins’s job brought him in constant
contact with other animal health professionals, government officials, and members of the public.
Between 1987 and 2005, Higgins received performance reviews ranging from “exceeds
job performance standards” to “outstanding” and “superior.” Am. Compl., Docket No. 13. Not
all assessments of his performance during this time were positive, however. In 2002, Higgins’s
review stated that he was “abrasive and confrontational.” In 2003, his review called him
“abrasive and arrogant.” In 2004, his review stated that he was “abrupt with [the] public, fellow
staff, and subordinates.” Id.
Near the end of 2005, these behaviors apparently began to escalate, leading to complaints
by fellow employees. For example, in November, Hohenhaus received a complaint from an
employee who had visited the CAHL to work on an incinerator. The employee alleged that he

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had been verbally assaulted by Higgins, who was upset about not having received advance notice
of the work. By 2006, MDA management began to receive regular complaints from the public,
co-workers, and supervisors about Higgins’s erratic behavior.
In early 2006, Higgins began experiencing symptoms of depression and mania. Around
this same time, according to MDA management, Higgins exhibited “[i]nappropriate outbursts,
comments or arguments in the workplace, public settings, meetings, or interactions with the
public,” and a “[f]ailure to follow established Agency policies, practices and procedure.” Id. In
February, Higgins attended a meeting with two members of the public and an employee of the
state Department of Health and Mental Hygiene. At the meeting, he told the group that he had
been beamed to Mars and had a chip in his brain that allowed him to see clearly. In March,
Higgins was diagnosed with bipolar II disorder; he began taking medication and seeing
specialists for treatment.
That autumn, Higgins was reprimanded for refusing to abide by new procedures for
employee evaluation, failing to control the amount of overtime claimed by subordinates, and
refusing to follow MDA procedures for authorizing overtime. On December 14th, during a
regional veterinarians meeting with the MDA’s homeland security expert, Higgins publicly
confronted Hohenhaus to voice displeasure about leave and pay issues that were unrelated to the
meeting. On December 20th, Higgins was admonished for his “unprofessional conduct” at the
meeting and for being “rude and unprofessional” to the expert. Id.
Nevertheless, Higgins’s misconduct continued in 2007. On March 28th, Higgins
submitted to the MDA human resources department a note from his doctor stating that, for the
previous year, Higgins had been treated for a condition that required regular office visits,

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consultations with specialists, and adjustments to medication. On July 6th, two members of the
public visited the CAHL to have papers signed for an animal fair. The two later reported to the
MDA that, during this visit, Higgins had acted “crazy” and was “argumentative and nasty.” Both
visitors warned that Higgins might attempt to harm himself or his supervisors. Def.’s Mot.,
Docket No. 21, Ex. 7. One visitor quoted Higgins as saying, in reference to Hohenhaus, “You
mark my word—it will end one way or another, I promise you.” Id. During a July 19th meeting,
Higgins was “loud, combative, rude, and offensive,” as noted in a subsequent “Formal
Counseling” memorandum from Hohenhaus to Higgins. Id.
Higgins’s behavioral problems did not abate the following year. In March 2008, Higgins
had a telephone conversation with an MDA attorney. Higgins’s demeanor during that
conversation was later described in formal counseling as “unprofessional and offensive” and
“loud, combative and rude.” Id. In an April 1st meeting, Hohenhaus told Higgins that he needed
to get “healthy” and threatened him with termination. Id. On August 6th, Higgins was
investigated for “an ongoing pattern of offensive behavior” including “loud, rude language”
directed at his secretary, superiors, and the public. Id., Ex. 8. He was suspended for five days.
In 2009, Higgins’s bad behavior escalated to an unsupportable level. On February 10th,
Higgins was designated the primary backup to a pathologist at the MDA Poultry Laboratory in
Salisbury, Maryland (the “SAHL”). The SAHL is approximately 70 miles from the CAHL, a
nearly three-hour round trip. Higgins was required to make this commute only on days when the
primary poultry pathologist was absent. Nevertheless, Higgins objected to the length of the
commute. He also complained that poultry pathology was outside his area of expertise and,
therefore, that he would not be effective in his new duties. The assignment caused Higgins

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considerable stress, and he voiced his displeasure to Hohenhaus, Chapman, and human
resources. In May, Higgins was required to be on-site at the SAHL for eight days in a row.
On April 29th, Higgins had three meetings with MDA animal-health personnel.
Participants later reported that, during one of the meetings, Higgins was “disruptive” and “ready
to blow.” Am. Compl., Docket No. 21. At another meeting, Higgins was allegedly
“nonproductive” and employed “intimidating body language with a raised voice and finger
pointing,” which decreased the productivity of the meeting. Pl.’s Opp., Docket No. 26. Higgins
informed the group that he had been “sick for the last three months” but was presently well. Id.
Higgins said he was “going to take on everyone.” Am. Compl., Ex. 9.
The next day, Hohenhaus directed Chapman to begin an investigation into Higgins’s
conduct at the meetings. On May 1st, Higgins, in a letter circulated to at least a dozen other
MDA employees, accused Hohenhaus of being a liar, cheat, and thief, and suggested that he
should be fired. Id., Ex. 10. Chapman concluded that Higgins should be referred to the agency’s
Employee Assistance Program to “address repeated behavior problems.” Id. This referral was
never made, though the record does not indicate why.
On May 6th, Chapman had a meeting with Higgins to discuss his conduct at the April
29th meetings. Higgins repeatedly interrupted her. On May 8th, Higgins allegedly told
Chapman that he was considering suicide. Chapman wrote to the MDA’s head of human
resources that she was “concerned for Dr. Higgins’ well-being” and that efforts to control his
behavior were futile. Id. She advised that any future investigation should “minimize the risk of
self-harm.” Id. Assistant Secretary of Agriculture S. Patrick McMillan then placed Higgins on
paid administrative leave, with specific instructions not to report to work. Nevertheless, Higgins

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appeared at an agricultural fair the next day and assisted a fellow MDA employee. In
conversation with the co-worker, Higgins said that he had been depressed for a decade.
The co-worker informed Chapman that Higgins had assisted at the fair and reported
thoughts of suicide. The co-worker asked if Higgins was “off his medicine.” Id. On May 10th,
Chapman sent an e-mail to MDA management saying that she had consulted a hospital and was
advised to refer Higgins to professional help or contact police. Chapman called Higgins’s wife
to inquire as to his mental health and express concern that he might be suicidal. Mrs. Higgins
told Chapman that her husband was under a doctor’s care. The next day, Chapman and the head
of human resources contacted Higgins to inform him that he had been placed on leave because he
was contemplating suicide. On May 14th, Higgins wrote to McMillan and denied that he was
suicidal. The next day, Higgins told Chapman that she was a “goddamned liar and a slanderer.”
Id. On May 19th, McMillan, Chapman, and others met with Higgins at MDA headquarters. At
the outset of the meeting, Higgins asked if anyone wanted water, adding, “It’s not poisoned.” Id.
Higgins refused to answer questions about his conduct, citing his rights under the Fifth
Amendment of the United States Constitution. The next day, McMillan met with Higgins and
informed him that his employment had been terminated.
On June 4th, Higgins appealed his termination to the Secretary of the MDA. The appeal
was denied. On June 25th, Higgins appealed to the Office of Personnel Services and Benefits
within the state Department of Budget and Management. That appeal was also denied. Higgins
then initiated proceedings before the Maryland Office of Administrative Hearings. He withdrew
that appeal, however, to pursue claims before the federal Equal Employment Opportunity
Commission (“EEOC”). The record does not include the results of the EEOC investigation.

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Higgins filed suit on January 12, 2011. In an Amended Complaint, which he filed on April 27th,
Higgins advances claims, under both § 504 of the federal Rehabilitation Act and the Maryland
Fair Employment Practices Act, for failure to accommodate and disability-based discrimination.1
II.

Standard of Review

“[T]he purpose of Rule 12(b)(6) is to test the sufficiency of a complaint and not to
resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.”
Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006) (internal quotation marks
and alterations omitted) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir.
1999)).
When ruling on such a motion, the court must “accept the well-pled allegations of the
complaint as true,” and “construe the facts and reasonable inferences derived therefrom in the
light most favorable to the plaintiff.” Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997).
“Even though the requirements for pleading a proper complaint are substantially aimed at
assuring that the defendant be given adequate notice of the nature of a claim being made against
him, they also provide criteria for defining issues for trial and for early disposition of
inappropriate complaints.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009).
To survive a motion to dismiss, the factual allegations of a complaint “must be enough to
raise a right to relief above the speculative level, . . . on the assumption that all the allegations in
the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (internal citations and alterations omitted). Thus, the plaintiff’s obligation is to set forth
sufficiently the “grounds of his entitlement to relief,” offering more than “labels and
1

29 U.S.C. § 794 et seq.; MD. CODE ANN., STATE GOV’T §§ 20-606, 20-901, 20-1013. The acts of alleged
discrimination are Higgins’s ten-day suspension without pay and his termination.

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conclusions.” Id. (internal quotation marks and alterations omitted). “[W]here the well-pleaded
facts do not permit the court to infer more than the mere possibility of misconduct, the complaint
has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Ashcroft v. Iqbal,
129 S. Ct. 1937, 1950 (2009) (quoting Fed. R. Civ. P. 8(a)(2)).
The Court may, under Rule 12(b)(6), and without converting the Motion to Dismiss into a
Motion for Summary Judgment, consider exhibits insofar as they are “integral to and explicitly
relied on in” the Complaint and to the extent that their authenticity is not challenged by the
plaintiff. Am. Chiropractic v. Trigon Healthcare, 367 F.3d 212, 234 (4th Cir. 2004) (internal
citation removed); see also Tellabs, Inc. v. Makor Issues & Rights, LTD, 551 U.S. 308, 322
(2007) (court may consider “documents incorporated into the complaint by reference”). Further,
to prevent a party from potentially misleading the court, documents referenced in the Complaint
may be considered in their entirety on a Motion to Dismiss.2 Id. at 324.
III.

Analysis
a. Preliminary Considerations

Higgins brings his claims under both the federal Rehabilitation Act and Maryland’s Fair
Employment Practices Act (“FEPA”). These statutes are not a model of clarity.3 Three points

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Plaintiff argues that the Court may not consider exhibits submitted by the Defendant in the current Motion without
converting it to a Motion for Summary Judgment. As shown above, this is not entirely correct. The Plaintiff has
not challenged the authenticity of any of the Defendant’s exhibits. There is also little doubt that the exhibits are
integral to the Plaintiff’s Complaint. Only some of the documents, however, were “explicitly” relied on in the
Complaint. Accordingly, in analyzing the current Motion to Dismiss, the Court will only consider those documents
referenced in the Complaint.
3
The Rehabilitation Act provides that:
No otherwise qualified individual with a disability in the United States, as defined in section
7(20), shall, solely by reason of her or his disability, be excluded from the participation in, be
denied the benefits of, or be subjected to discrimination under any program or activity receiving

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warrant mentioning here. First, the statutes have been interpreted to mean the same thing,
though there is apparently no definitive statement to this effect. The parties assume that the
FEPA provides the same protections and requires the same elements of proof as does the
Rehabilitation Act.4 Accordingly, for the purpose of deciding the instant Motion, the Court will
accept this assumption and apply its analysis equally to both statutes. See Ross v. Bd. of Educ.
of Prince George’s Cnty, 195 F. Supp. 2d 730, 734 n.1 (D. Md. 2002); but see Kohler v.
Shenasky, 914 F. Supp. 1206, 1211 (D. Md. 1995) (“There is no indication that Maryland
intended [FEPA to] provide the same extensive rights and protections as the [Rehabilitation
Act].”). In addition, claims brought under the Rehabilitation Act are subject to the same analysis
as claims brought under the Americans with Disabilities Act. Doe v. Univ. of Md. Medical Sys.
Corp., 50 F.3d 1261, 1264 n.9 (4th Cir. 1995) (explaining that the same elements apply to Title II
of the ADA and § 504 of the Rehabilitation Act).

Federal financial assistance or under any program or activity conducted by any Executive agency
or by the United States Postal Service.
29 U.S.C. § 794. The FEPA provides that:
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 … disability unrelated in nature and extent so as to
reasonably preclude the performance of the employment; or … (2) limit, segregate, or classify its
employees or applicants for employment in any way that would deprive or tend to deprive any
individual of employment opportunities or otherwise adversely affect the individual’s status as an
employee because of: … (i) the individual’s … disability unrelated in nature and extent so as to
reasonably preclude the performance of the employment; or … (4) fail or refuse to make a
reasonable accommodation for the known disability of an otherwise qualified employee.
MD. CODE ANN., STATE GOV’T § 20-606. These prohibitions also apply to state agencies. MD. CODE ANN., STATE
GOV’T § 20-901.
4

There is good reason for this assumption. For example, the FEPA’s interpretive guidelines were modeled after the
Rehabilitation Act, and interpretation of the Rehabilitation Act has guided subsequent interpretation of the FEPA.
See Mass Transit Admin. v. Md. Comm’n on Human Relations, 515 A.2d 781, 787 (Md. Ct. Spec. App. 1986).

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Second, the statutes generally prohibit discrimination against employees on the basis of a
“disability” as that term is defined by the ADA. See Rhoads v. F.D.I.C., 257 F.3d 373, 387 (4th
Cir. 2001). They also require an employer, upon request, to offer a “reasonable accommodation”
to disabled employees who are “otherwise qualified” for the position.
Third, the statutes both require administrative exhaustion. See, e.g., Snead v. Bd. of
Educ. of Prince George’s Cty., No. DCK-11-0503, 2011 WL 3885811, at *2 (D. Md. Sept. 2,
2011) (“Prior to filing a law suit alleging violations of the ADA or the Rehabilitation Act, a
plaintiff must first exhaust administrative remedies.”).5 The exhaustion requirement under the
Rehabilitation Act is identical to that of Title VII. Id. at *2.
b. Disability Discrimination and Failure to Accommodate
Higgins advances two separate claims. He contends that the MDA (i) failed to provide
him with a reasonable accommodation, and (ii) terminated him on the basis of a disability.
Although reasonable accommodation and discrimination claims are analyzed under two separate
tests, both require Higgins to prove that he is a “qualified individual with a disability.”6

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An exhaustion requirement also is required by the FEPA. MD. CODE ANN., STATE GOV’T § 20-1013(a)(1); Crosten
v. Kamauf, 932 F. Supp. 676, 679 (D. Md. 1996). Under the FEPA, a plaintiff may bring suit if a timely state,
federal, or local administrative charge was filed; at least 180 days has passed since the filing of that charge; and the
action is within two years of the allegedly unlawful conduct. Id. The timely charge of discrimination must state
“the particulars of the alleged discriminatory act.” MD. CODE ANN., STATE GOV’T § 20-1004(b)(2)(ii).
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To establish a prima facie case for failure to accommodate, Higgins must show (1) that he was an individual who
had a disability within the meaning of the statute; (2) that the employer had notice of his disability; (3) that with
reasonable accommodation he could perform the essential functions of his position; and (4) that the employer
refused to make such accommodation. Rhoads , 257 F.3d at 387 n.11.
To establish a prima facie case for disability discrimination, Higgins must demonstrate that he (1) is disabled; (2) is
otherwise qualified for the position; and (3) suffered an adverse employment action solely on the basis of his
disability. Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 498 (4th Cir. 2005).

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A plaintiff is “qualified” if he or she is “an individual who, with or without reasonable
accommodation, can perform the essential functions of the employment position that such
individual holds.” 42 U.S.C. § 12111(8). “Essential functions” are “the fundamental job duties
of the employment position.” 29 C.F.R. § 1630.2(n)(1). They do not include “the marginal
functions of the position.” Id. The “essential functions” of Higgins’s position included
courteous and professional interactions with the public, fellow staff, subordinates, and
supervisors. He was also required to follow MDA policies, practices, and procedures.
Higgins argues that his behavior throughout his long employment at the MDA was
consistent, and that his colleagues and superiors respected his job performance and “accepted
that his personality was different.” Pl.’s Opp. 43–44. Although one of Higgins’s claims relates
to the MDA’s failure to provide a reasonable accommodation, he also appears to argue that he
did not need an accommodation in order to perform the essential functions of his job: “he was
able to meet the requirements of his position throughout his employment with MDA… he was
able to perform the essential functions and was even given a raise immediately prior to his
termination.” Id. at 43. Higgins’s contention, in other words, is that an ability to behave
professionally and courteously was not “essential” to his position. See, e.g., id. at 8 (arguing that
Higgins’s “behavioral foibles and mental condition did not compromise his ability to
successfully perform the duties of his position”). This is simply incorrect.
Higgins cannot and does not deny his long history of outbursts and improprieties at work.
He consistently failed to treat co-workers and members of the public with respect. For instance,
Higgins referred to the MDA Director, Hohenhaus, as “buddy boy,” and sent him an emotional
letter stating “unlike you, Dr. Hohenhaus, I do not lie, cheat, or steal!” Id. at 11, 22. Similarly,

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he accused Chapman of being “a God damned liar and slanderer.” Id. at 30. Two women who
came to Higgins’s lab were so upset by his behavior that they complained to the MDA. In 2008,
he was put on a five-day suspension when his own secretary complained about his ongoing
pattern of using offensive language.
Moreover, Higgins concedes that he was unable to control his behavior: “Dr. Hohenhaus
was again, targeting Dr. Higgins’ behavior, which, given Dr. Higgins’ mental well being, was
not something Dr. Higgins could simply control.” Id. at 14. The above instances, along with
others that are documented in the record, prove that Higgins was consistently unable to interact
with other individuals in a respectful and appropriate way. Because he could not, therefore,
perform the “essential functions” of his position, he is not a “qualified” individual entitled to
relief under the applicable statutes. See Darcangelo v. Verizon Maryland, Inc., 189 Fed. Appx.
217, 218–19 (4th Cir. 2006) (concluding that an employee who suffered from bipolar disorder
was not “otherwise qualified” because her “aggressive and antagonistic behavior thus
demonstrated her complete inability to interact with others in a courteous manner, as required by
her position and Verizon’s Code of Business Conduct”).
In sum, Higgins failed to do his job because of his bad behavior. Moreover, the fact that
the bad behavior was caused by a mental disorder does not excuse Higgins’s failure to perform
the essential functions of his position. A plaintiff must establish that he could have satisfied the
requirements of his job with a reasonable accommodation, but that the employer failed to
provide one upon request. See note 6, supra; see also Fleetwood v. Harford Systems, Inc., 380 F.
Supp. 2d 688, 701 (D. Md. 2005) (“The employee bears the initial burden of informing his
employer that an accommodation is needed.”). Higgins cannot satisfy either of these two

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points. To this day, he has not identified an accommodation that would have enabled him to
conform his behavior to an acceptable standard. Further, he never approached the MDA to
disclose the details of his impairment and initiate a dialogue by requesting an accommodation
that might overcome the obstacle posed by it.
In providing a reasonable accommodation, employers are not required “to reallocate
essential job functions or assign an employee ‘permanent light duty’” Crabhill v. Charlotte
Mecklenburg Bd. Of Educ., 423 Fed. Appx. 314, 323 (4th Cir. 2011).7 Similarly, employers are
not required to tolerate abusive behavior by a disabled individual, even if the behavior is related
to the disability. See Darcangelo, 189 Fed. Appx. at 219. Indeed, “[t]he law is well settled that
the ADA is not violated when an employer discharges an individual based upon the employee’s
misconduct, even if the misconduct is related to a disability.” Jones v. Am. Postal Workers
Union Nat’l, 192 F.3d 417, 429 (4th Cir. 1999) (internal citations omitted).
In sum, given Higgins’s extreme misconduct, and absent evidence that a reasonable
accommodation would have resulted in cessation of that misconduct, Higgins is not a “qualified
individual” for the purposes of the Rehabilitation Act or FEPA. His disability discrimination and
reasonable accommodation claims, therefore, must fail.8

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Similarly, employers may change an employee’s responsibilities or adopt new management policies so long as the
changes or policies are legitimate and not motivated by discrimination. Dr. Hohenhaus was, therefore, entitled to
increase Dr. Higgins’s job responsibilities, as he did in both 2006 and 2009. See Pl.’s Opp. 4, 18. He was also
entitled to “recalibrate evaluations of laboratory employees.” Id. at. 9. Senior management acted well within its
rights when it dictated that the MDA “reduce or eliminate unbudgeted overtime.” Id. at 10.
8
The MDA also argues that Higgins has failed to exhaust his administrative remedies regarding reasonable
accommodation. Given that Higgins’s claim of denial of a reasonable accommodation fails on the merits, the Court
need not decide this issue.

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IV.

Conclusion

For the foregoing reasons, the Court will, by separate order of even date, GRANT the
Defendant’s Motion to Dismiss.

It is so ORDERED this 28th day of February, 2012.

/s/
Benson Everett Legg
United States District Judge

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