Dawson v. Jetty Partners, LLC.

Filing 16

MEMORANDUM AND ORDER denying 10 Motion to Dismiss. Signed by Judge James K. Bredar on 2/8/12. (apls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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ANTHONY DAWSON,

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Plaintiff

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v.

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JETTY PARTNERS, LLC,
Defendant
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CIVIL NO. JKB-11-1129

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MEMORANDUM AND ORDER
I. Background
This employment discrimination case was filed by Plaintiff Anthony Dawson, who
formerly worked as a bartender at Defendant’s restaurant, The Jetty Restaurant & Dock Bar,
located in Grasonville, Maryland. (Compl., ECF No. 1.) Dawson alleged that he was subjected
to discrimination and retaliation in violation of the Americans with Disabilities Act, 42 U.S.C.
§ 12101 et seq. (“ADA”), the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq.
(“FMLA”), and Maryland state law, Md. Code Ann., State Gov’t § 20-606 (LexisNexis 2009).
Defendant has filed a motion to dismiss or, in the alternative, a motion for summary judgment. 1
(ECF No. 10.) The matter has been briefed (ECF Nos. 14, 15), and no hearing is necessary,
Local Rule 105.6. The motion will be denied.

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In Count V, Dawson alleged his termination was contrary to Maryland public policy.
(Compl. ¶¶ 48-51.) Plaintiff and Defendant agree this count should be dismissed. (Def.’s Mot.
Summ. J. 2, ECF No. 10; Pl.’s Opp. 1-2, ECF No. 14.) For the reasons stated by Defendant
(Def.’s Mot. Supp. Mem. 9), the Court concurs. Count V will be dismissed by separate order.
Because the only argument made by Defendant pursuant to Federal Rule of Civil Procedure
12(b)(6) was that pertaining to the dismissed count, Count V, the remainder of the motion will be
analyzed only under the standard for summary judgment.

II. Standard for Summary Judgment
“The court shall grant summary judgment if the movant shows that 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing predecessor to
current Rule 56(a)). The burden is on the moving party to demonstrate the absence of any
genuine dispute of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). If
sufficient evidence exists for a reasonable jury to render a verdict in favor of the party opposing
the motion, then a genuine dispute of material fact is presented and summary judgment should be
denied. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, the “mere
existence of a scintilla of evidence in support of the [opposing party’s] position” is insufficient to
defeat a motion for summary judgment. Id. at 252. The facts themselves, and the inferences to
be drawn from the underlying facts, must be viewed in the light most favorable to the opposing
party, Scott v. Harris, 550 U.S. 372, 378 (2007); Iko v. Shreve, 535 F.3d 225, 230 (4th Cir.
2008), who may not rest upon the mere allegations or denials of his pleading but instead must, by
affidavit or other evidentiary showing, set out specific facts showing a genuine dispute for trial,
Fed. R. Civ. P. 56(c)(1). Supporting and opposing affidavits are to be made on personal
knowledge, contain such facts as would be admissible in evidence, and show affirmatively the
competence of the affiant to testify to the matters stated in the affidavit. Rule 56(c)(4).
III. Undisputed Facts
Dawson began working as a bartender for Defendant around June 2005 on an at-will
basis. Roughly four years later, in June 2009, he was diagnosed with emphysema, a condition
characterized by labored breathing after physical exertion. In December 2009, Dawson obtained
a placard for his automobile that permitted him to park in handicapped-designated parking
spaces. On weekends, the restaurant utilized two overflow parking lots some distance away from
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the restaurant. In May 2010, Dawson injured his back. His last day at work was May 11, 2010.
The remaining facts are disputed.
IV. Disability Discrimination
A. Qualified Individual with a Disability
Defendant contends it is entitled to summary judgment on Counts I and III, which assert
termination on the basis of disability contrary to the ADA and Maryland law, respectively.
Defendant disputes that Dawson may be considered a qualified individual with a disability given
the allegations in his complaint and his sworn testimony before the Maryland Workers’
Compensation Commission (“MWCC”) that he was totally disabled and unable to work from
May 9, 2010, to at least July 30, 2010. (Def.’s Mot. Summ. J. Supp. Mem. 5, ECF No. 10.) The
Court has carefully perused both the complaint’s allegations and Dawson’s testimony before the
MWCC and found nothing remotely like a statement of total disability for this period of time.
Since Defendant does not dispute that Dawson is a qualified individual or that Dawson’s
diagnosis of emphysema is a disability within the meaning of the applicable statutes, the Court
concludes this argument is not well-founded.
B. Reason for Discharge other than Disability
Defendant’s next argument in favor of summary judgment on Counts I and III is that the
undisputed facts show that Dawson was discharged not because of his disability of emphysema
but because of his back injury. Once again, Defendant refers to the complaint and Dawson’s
testimony before the MWCC to support its contention. Once again, the Court does not find the
compelling evidence in those sources to which Defendant refers. In the complaint, Dawson
alleged in paragraph 19, “Despite Plaintiff’s notice to his employer of his injuries, on or about
May 15, 2010, Defendant terminated Plaintiff’s employment for failing to show up and work.”
A reasonable interpretation of that allegation is that the stated reason given by Defendant to
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Dawson for termination was his failure to show up and work. It does not necessarily follow that
Defendant’s stated reason was its actual reason, particularly given Dawson’s later allegation that
Defendant terminated him solely on the basis of his disability. (Compl. ¶ 28.) As for the
MWCC testimony, Dawson simply did not testify one way or the other as to the reason for his
termination. This argument also fails. Defendant has failed to show it is entitled to summary
judgment on Counts I and III.
C. Failure to Accommodate
1. Request for Accommodation
Defendant contends it is entitled to summary judgment on Counts II and IV, which assert
federal and state statutory violations for alleged failure to accommodate Dawson’s disability of
emphysema. Under the ADA, an employer is required to make reasonable accommodations to
the known physical or mental limitations of an otherwise qualified individual with a disability
unless such accommodation would impose undue hardship on the employer.

42 U.S.C.

§ 12112(b)(5)(A). Thus, Dawson must prove that (1) he is disabled within the meaning of the
ADA, (2) Defendant had notice of his disability, (3) he could perform the essential function of
his bartender’s position with reasonable accommodation, and (4) Defendant refused to make
reasonable accommodation. See Rhoads v. FDIC, 257 F.3d 373, 387 (4th Cir. 2001). Similarly,
Maryland law forbids discharge of a disabled individual “only if a reasonable accommodation
would enable . . . [him] to perform the essential functions of the position the person involved was
hired to perform.” Md. Comm’n on Human Relations v. Mayor and City Council of Balt., 586
A.2d 37, 42 (Md. Ct. Spec. App. 1991) (interpreting forerunner to § 20-606).
Dawson’s disability of emphysema is not in dispute, nor has Defendant disputed its
awareness of his disability.

What is in dispute is whether Dawson requested reasonable

accommodation by seeking to park closer to the restaurant than the overflow lots and whether
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reasonable accommodation was denied.

The parties’ competing affidavits show a genuine

dispute of material fact on these points. Consequently, summary judgment on Counts II and IV
is inappropriate.
2. Failure to Accommodate
Defendant alternatively argues it should receive summary judgment on Counts II and IV
because it, in fact, accommodated Dawson’s emphysema by offering a shuttle between the
overflow lots and the restaurant for both employees and customers. Dawson counters that the
shuttle was only offered three hours after his shifts began. Again, competing affidavits create a
genuine dispute of material fact and make Counts II and IV unsuitable for summary judgment.
V. Family and Medical Leave Act
Dawson’s sixth count alleges Defendant violated the Family and Medical Leave Act
(“FMLA”) by failing to notify him of his eligibility for leave and by terminating him without
notice of his rights under the statute. (Compl. ¶¶ 56, 57.) Defendant seeks summary judgment
on this count on the basis that Dawson did not suffer from a serious health condition within the
meaning of the FMLA and on the basis that Dawson failed to provide sufficient notice to
Defendant to trigger the latter’s obligations under the FMLA.
A. Serious health condition
Dawson’s claim under the FMLA is based on his back injury rather than his emphysema.
Under the statute, an employee may be entitled to leave “[b]ecause of a serious health condition
that makes the employee unable to perform the functions of the position of such employee.” 29
U.S.C. § 2612(a)(1)(D). Pertinent to this case, “serious health condition” is defined to mean an
illness, injury, impairment, or physical or mental condition that involves continuing treatment by
a health care provider. 29 U.S.C. § 2611(11)(B). The regulations promulgated by the U.S.
Department of Labor offer further definition of the term “continuing treatment”:
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A serious health condition involving continuing treatment by a health care
provider includes any one or more of the following:
(a) Incapacity and treatment. A period of incapacity of more than three
consecutive, full calendar days, and any subsequent treatment or period of
incapacity relating to the same condition, that also involves:
(1) Treatment two or more times, within 30 days of the first day of incapacity,
unless extenuating circumstances exist, by a health care provider, by a nurse
under direct supervision of a health care provider, or by a provider of health care
services (e.g., physical therapist) under orders of, or on referral by, a health care
provider; or
(2) Treatment by a health care provider on at least one occasion, which results
in a regimen of continuing treatment under the supervision of the health care
provider.
(3) The requirement in paragraphs (a)(1) and (2) of this section for treatment by
a health care provider means an in-person visit to a health care provider. The first
(or only) in-person treatment visit must take place within seven days of the first
day of incapacity.
(4) Whether additional treatment visits or a regimen of continuing treatment is
necessary within the 30-day period shall be determined by the health care
provider.
...
(e) Conditions requiring multiple treatments. Any period of absence to receive
multiple treatments (including any period of recovery therefrom) by a health care
provider or by a provider of health care services under orders of, or on referral by,
a health care provider, for:
(1) Restorative surgery after an accident or other injury; or
(2) A condition that would likely result in a period of incapacity of more than
three consecutive, full calendar days in the absence of medical intervention or
treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical
therapy), or kidney disease (dialysis).
29 C.F.R. § 825.115.
Further, the term “incapacity” is defined as “inability to work, attend school or perform
other regular daily activities due to the serious health condition, treatment therefore [sic], or
recovery therefrom.” 29 C.F.R. § 825.113(b). Also, the regulations define “treatment” in the
following manner:
The term “treatment” includes (but is not limited to) examinations to determine if
a serious health condition exists and evaluations of the condition. Treatment does
not include routine physical examinations, eye examinations, or dental
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examinations. A regimen of continuing treatment includes, for example, a course
of prescription medication (e.g., an antibiotic) or therapy requiring special
equipment to resolve or alleviate the health condition (e.g., oxygen). A regimen
of continuing treatment that includes the taking of over-the-counter medications
such as aspirin, antihistamines, or salves; or bed-rest, drinking fluids, exercise,
and other similar activities that can be initiated without a visit to a health care
provider, is not, by itself, sufficient to constitute a regimen of continuing
treatment for purposes of FMLA leave.
29 C.F.R. § 825.113(c).
It must be resolved whether Dawson was incapacitated for more than three consecutive
days. He stated in his affidavit he was injured on May 9, 2010, at the restaurant when he tripped
over a pan left on the floor.2 (Pl.’s Opp. Ex. 1.) The next morning he visited his doctor and
received two prescriptions, but reported for work that same day for his scheduled shift. He stated
he requested to leave early, but his request was denied. He also reported for work on May 11,
despite his continued pain, and his request to leave early that day was also denied. His next
scheduled day to work was May 14, but he stated he was unable to work because of his pain. On
May 15, he visited his doctor, who prescribed stronger medicines and who provided Dawson
with a note. Dawson took the note to the restaurant and handed it to a kitchen manager,
informing him of his fall on May 9 and his injuries. He visited his doctor again on May 20.
Dawson stated he underwent physical therapy until in or around July 2010, and he was under the
care of an orthopedist until in or around July 2010.
A reasonable jury could find from this evidence that Dawson was incapacitated for more
than three days. If so, then he would seem to have no trouble satisfying the definition of
treatment and, by extension, the definition of serious health condition. However, the Court also
notes that no discovery has occurred in this case, and fully developed evidence may or may not

2

Dawson and the restaurant employees dispute whether he notified the restaurant of his
fall, and they further dispute whether he notified the restaurant on May 14 and 15 of his inability
to work.
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compel a conclusion of incapacity of more than three days. As with the prior counts, summary
judgment is not appropriate at this stage of the proceedings.
B. Notice to Defendant
Defendant argues Dawson failed to provide timely and adequate notice to it that would
trigger any obligation by it under the FMLA. The content of the notice required of an employee
in the event of an unforeseeable need for absence is addressed in 29 C.F.R. § 825.302(c), which
provides in pertinent part:
An employee shall provide at least verbal notice sufficient to make the employer
aware that the employee needs FMLA-qualifying leave, and the anticipated
timing and duration of the leave. Depending on the situation, such information
may include that a condition renders the employee unable to perform the
functions of the job; that the employee is pregnant or has been hospitalized
overnight; whether the employee or the employee's family member is under the
continuing care of a health care provider; if the leave is due to a qualifying
exigency, that a covered military member is on active duty or call to active duty
status, and that the requested leave is for one of the reasons listed in § 825.126(a);
if the leave is for a family member, that the condition renders the family member
unable to perform daily activities, or that the family member is a covered
servicemember with a serious injury or illness; and the anticipated duration of the
absence, if known. When an employee seeks leave for the first time for a FMLAqualifying reason, the employee need not expressly assert rights under the FMLA
or even mention the FMLA.
As for the timing of the notice, the federal regulations state that, if 30 days’ notice is not
practicable, then notice must be given as soon as practicable. 29 C.F.R. § 825.302(a). “As soon
as practicable” is defined to mean
as soon as both possible and practical, taking into account all of the facts and
circumstances in the individual case. When an employee becomes aware of a
need for FMLA leave less than 30 days in advance, it should be practicable for the
employee to provide notice of the need for leave either the same day or the next
business day. In all cases, however, the determination of when an employee
could practicably provide notice must take into account the individual facts and
circumstances.
29 C.F.R. § 825.302(b).

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Given the individual facts and circumstances presented at this early stage of litigation, it
would be reasonable for a jury to conclude that Dawson complied with the notice requirement of
the federal regulations. This is particularly so in light of one circumstance. The Court has been
provided by Defendant with a copy of its employee handbook that, presumably, was in effect
during the time period in issue. Having looked at that handbook, the Court cannot conclude that
Dawson was sufficiently informed by Defendant of his FMLA rights and responsibilities before
the need for leave arose. According to the federal regulations, a written employee handbook or
other written guidance to employees must include the “general notice” explaining the FMLA’s
provisions and providing information concerning the procedures for filing complaints of
violations of the FMLA with the Department of Labor’s Wage and Hour Division. 29 C.F.R.
§ 825.300(a)(1), (3). To meet the requirements of the regulation,
employers may duplicate the text of the notice contained in Appendix C of this
part or may use another format so long as the information provided includes, at a
minimum, all of the information contained in that notice.
29 C.F.R. § 825.300(4).
The text of the notice contained in Appendix C is quite lengthy and includes much more
than what is contained in the employee handbook. (See Def.’s Mot. Ex. 1 at 15.) If Defendant
never complied with the governing law on providing notice to Dawson of his FMLA rights and
responsibilities, then that circumstance would seem to be in Dawson’s favor on the question of
whether he properly notified Defendant of his need for FMLA leave. This matter will also
benefit from further factual development and may not presently be resolved by summary
judgment.
VI. Preclusive Effect of State Administrative Agency Determination
Defendant’s last argument is that it is entitled to summary judgment on Counts I, III, V,
and VI because the undisputed facts from a proceeding before a hearing examiner in the appeals
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division of the Maryland Employment Security Administration (“MESA”) established that
Plaintiff voluntarily quit his employment with Defendant. Although cited by neither party, the
Fourth Circuit’s decision in Ross v. Commc’n Satellite Corp., 759 F.2d 355 (4th Cir. 1985),
abrogated on other grounds by Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), governs this
issue.
In Ross, the Court noted that under 28 U.S.C. § 1783, the “full faith and credit” law,
federal courts must give preclusive effect to state court judgments when the state courts
themselves would do so. 759 F.2d at 360. Continuing in its analysis of Maryland case law, the
Court concluded that preclusive effect should not be given to the findings of the MESA Appeals
Referee when later relied upon in a federal discrimination case. Id. The guiding principle
employed by Maryland courts is that a judicial determination by an administrative agency is not
binding upon another adjudicator “‘seeking to determine an apparently identical issue under a
different statute’ so long as there exist ‘substantial differences between the statutes themselves.’”
Id. at 361-62 (quoting Cicala v. Disability Review Board for Prince George’s County, 418 A.2d
205, 211-12 (Md. 1980)). The Court found,
Title VII and the Maryland Unemployment Insurance Law cannot be construed as
identical under the stringent analysis Maryland law requires. The purposes of the
two statutes are unrelated. . . . Title VII aims to “achieve equality of employment
opportunities and remove barriers that have operated in the past.” By contrast, the
Unemployment Insurance Law concerns “persons unemployed through no fault of
their own.”
759 F.2d at 362 (citations omitted).
Further, the Court said, “[W]hile a Maryland administrative adjudicator is concerned with
forbidden conduct on the part of the employee, Title VII directs the factfinder’s attention to a
forbidden motive on the part of the employer.
Maryland law makes them so.” Id.

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Such distinctions are meaningful because

In Dawson’s case, this Court has no difficulty concluding that disability discrimination
laws are also meaningfully distinctive from Maryland’s laws pertaining to unemployment
compensation. Thus, no preclusive effect will be accorded the MESA determination in this case.
VII. Conclusion
For the foregoing reasons, Defendant has not shown it is entitled to summary judgment.
Accordingly, the motion (ECF No. 10) is DENIED.
DATED this 8th day of February, 2012.

BY THE COURT:

/s/
James K. Bredar
United States District Judge

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