Issacs v. Baltimore City Fire Department et al
MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 11/12/2014. (jnls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Civil Action No. GLR-12-1060
BALTIMORE CITY FIRE
DEPARTMENT, et al.,
THIS MATTER is before the Court on Defendants’, Mayor & City
Department (“BCFD”), James Clack, and Donald Heinbuch, Motion for
Summary Judgment. (ECF No. 33).
Having reviewed the pleadings and
supporting documents, the Court finds no hearing necessary.
Local Rule 105.6 (D.Md. 2014).
For the reasons outlined below, the
Defendants’ Motion for Summary Judgment will be granted.
Plaintiff Brian Isaacs was hired by the BCFD as a front-line
Firefighter on January 15, 2003.
On March 6, 2008, he fell out of
a moving fire truck and suffered a serious head injury that left
him unable to hear out of his right ear.
After the accident,
Isaacs was placed on paid injury leave for twelve months.
point during this period, Dr. James Levy, Director of the BCFD’s
Unless otherwise noted, the following facts are taken from
the Complaint and the parties’ briefings on the instant motion, and
are viewed in the light most favorable to the nonmoving party.
Public Safety Infirmary, and the BCFD determined that Isaacs was
unable to safely and reliably perform all the essential functions
of a Firefighter.
In light of this decision, Isaacs requested that
he be permitted to return to work as an instructor at the BCFD
After Isaacs returned to work as a training instructor on
opinions to the BCFD, each stating he could sufficiently perform
the essential functions of a Firefighter pursuant to the National
Fire Protection Association 1582 Standard on Medical Requirements.
Further, Isaacs requested the opportunity to demonstrate that he
could perform the essential functions of a Firefighter through a
field performance test.
Multiple discussions were held concerning
Isaacs’s individualized abilities.
Nevertheless, Dr. Levy and the
BCFD declined to reverse their position barring Isaacs’s return to
abilities through a field performance test.
Isaacs filed an Intake Questionnaire with the Equal Employment
Opportunity Commission (“EEOC”), which he requested be accepted as
his EEOC charge, on December 11, 2009.
He received a Notice of
Right to Sue on January 5, 2012, and instituted this action on
Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq.
(2012) (Count One); employment discrimination on the basis of race,
in violation of Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. §§ 2000e et seq. (2012) (Count Two); Retaliation
(Count Three); violation of his right to equal protection of the
United States by way of 42 U.S.C § 1983 (2012) (Count Four); and
employment discrimination in violation of 42 U.S.C § 1981 (2012)
On March 17, 2014, Defendants moved for Summary
Judgment on all counts.
(ECF No. 33).
The Motion is ripe for
Standard of Review
Under Federal Rule of Civil Procedure 56, the Court must grant
genuine issue as to any material fact, and the moving party is
entitled to judgment as a matter of law.
In reviewing a motion for summary judgment, the Court views
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing
Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970)).
motion for summary judgment is properly made and supported, the
opposing party has the burden of showing that a genuine dispute
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586-87 (1986).
“[T]he mere existence of some alleged
factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.”
U.S. at 247-48 (alteration in the original).
A “material fact” is one that might affect the outcome of a
Id. at 248; see also JKC Holding Co. v. Wash. Sports
Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001) (citing HoovenLewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001)).
substantive law, and “[o]nly disputes over facts that might affect
preclude the entry of summary judgment.”
Anderson, 477 U.S. at
248; accord Hooven-Lewis, 249 F.3d at 265.
1. Proper Parties
At the outset, the City is the only proper Defendant to this
First, in his Opposition to Defendants’ Motion for Summary
Judgment, Isaacs withdrew his claims against the individually named
Defendants James Clack and Donald Heinbuch.
Summ. J. [“Opp’n”] 1 n.1, ECF No. 44).
(Pl.’s Opp’n Mot.
James Clack and Donald Heinbuch will be dismissed.
Second, Defendants argue the BCFD is an executive department
of the City government that does not have an independent legal
identity or the capacity to sue or be sued.
The Court agrees.
Jenkins v. Balt. City Fire Dept., 862 F.Supp.2d 427, 441–42 (D.Md.
2012) (relying on the Baltimore City Charter in holding that the
BCFD is an entity without the power to sue or be sued), aff’d on
other grounds, 519 F.App’x. 192 (4th Cir. 2013).
claims against the BCFD will be dismissed with prejudice.
the City is the only remaining Defendant in this action.
2. Proper Claims
(Opp’n 1 n.1).
As a result of voluntarily dismissing
his racial discrimination claim, however, Isaacs claim under § 1981
fails because his only remaining allegation is discrimination on
the basis of disability.
Section 1981 claims are limited to claims of discrimination on
the basis of race and alienage.
Holder v. N.C. Dep’t of Corr., 804
F.2d 1250, 1986 WL 16159, at *1 n.* (4th Cir. Nov. 10, 1986);
(“[Section] 1981 does not prohibit discrimination on the basis of
respect to Count Five.
Further, Isaac’s ADA claim (Count One) and § 1983 claim (Count
Four) will be dismissed as time-barred.
intentional employment discrimination under § 1983 is subject to
general personal injury cases.
Owens v. Okure, 488 U.S. 235, 250
personal injury cases is three years.
Jud. Proc. § 5–101 (West 2014).
See Md.Code. Ann. Cts. &
Assuming arguendo that Isaacs’s
filing limitations period commenced on March 30, 2009, the date he
reported to work as an instructor at the Training Academy, the
April 5, 2012, the date Isaacs initiated this action.
Title I of the ADA, filing a charge of discrimination with the EEOC
tolls the ADA statute of limitations because Title I requires the
42 U.S.C. § 12117 (2012) (incorporating Title
VII’s requirement that a plaintiff file a charge with the EEOC
Fairfax Cnty., Va., 681 F.3d 591, 593 (4th Cir. 2012) (finding the
discrimination occurs in Maryland, the aggrieved party is required
The ADA does not contain a statute of limitations. Jeandron
v. Bd. of Regents of Univ. Sys. of Md., 510 F.App’x 223, 2013 WL
541044, at *266 (4th Cir. Feb. 14, 2013). Thus, the ADA is subject
to the state statute of limitations that applies to the most
analogous state-law claim. A Soc’y Without a Name v. Va., 655 F.3d
342, 347 (4th Cir. 2011).
“Maryland courts apply the three-year
limitations period governing general civil actions to ADA . . .
claims.” Jeandron, 510 F.App’x at *226 (citing Schalk v. Assoc.
Anesthesiology Practice, 316 F.Supp.2d 244, 251 (D.Md. 2004)).
to file a complaint with the EEOC “within three hundred days after
the alleged unlawful employment practice occurred.” 42 U.S.C. §
Isaacs filed his EEOC Intake Questionnaire on December 11,
circumstances, an EEOC Intake Questionnaire may be construed as a
Assuming the Court construes Isaacs’s December 11, 2009 EEOC Intake
Questionnaire as a charge of discrimination, the crucial issue is
whether there is an allegation of an unlawful employment practice
occurring after February 14, 2009.4
employment practice’ of which [Isaacs] complains,” Del. State Coll.
discriminatory act took place, id. at 259.
A discriminatory act
communicated to the plaintiff, “not upon the time at which the
consequences of the acts became most painful.”
Id. at 258 (quoting
Because Maryland is a state with an “agency with authority
to grant or seek relief from such practice,” 42 U.S.C. § 2000e5(e)(1), the filing period is extended from one hundred and eighty
days to three hundred days.
The 300-day period preceding December 11, 2009 commenced
February 14, 2009.
Abramson v. Univ. of Haw., 594 F.2d 202, 209 (9th Cir. 1979))
(emphasis in the original).
Moreover, “the pendency of a grievance, or some other method
of collateral review of an employment decision, does not toll the
running of the limitations periods,” Ricks, at 261 (citing Elec.
Workers v. Robbins & Myers, Inc., 429 U.S. 229 (1976)), and an
employers’ refusal to rectify a past employment decision does not
constitute a continuing violation, see Knight v. Columbus, Ga., 19
F.3d 579, 580 (11th Cir. 1994) (“[W]here the employer engaged in a
discrete act of discrimination [outside the limitations period],
limitations].”) (alteration in the original); Lever v. Nw. Univ.,
979 F.2d 552, 556 (7th Cir. 1992) (“An employer’s refusal to undo a
discriminatory decision is not a fresh act of discrimination.”);
Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429, 443 (1st
strenuously pursued reinstatement during the limitations period).
The filing limitations period commenced, therefore, at the time the
BCFD’s decision concerning Isaacs’s ability to return to work as a
Baltimore City Firefighter was made and communicated to him.
As early as September 8, 2008, Dr. Levy determined that Isaacs
was “permanently unable to perform, in a safe regular, reliable
manner all of the essential functions of a Fire Fighter/Paramedic
for Baltimore City.”
(Mot. Summ. J. Ex. 8, at 2, ECF No. 33-9).
On October 7, 2008, Dr. Levy reviewed with Isaacs his hearing loss
as it applied to his ability to perform those essential functions,
but agreed that further assessment would be undertaken. (Id.
advised Isaacs of his final determination that “due to [Isaacs’s]
unilateral hearing loss[, he was] permanently unable to return to
work as a Baltimore City Fire Fighter.”
(Mot. Summ. J. Ex. 7, ECF
No. 33-8); (see also Mot. Summ. J. Ex. 8, at 1).
December 4, 2008 meeting, Isaacs discussed with Dr. Levy whether he
could return to work as a Fire Instructor.
(Mot. Summ. J. Ex. 8,
officially endorse his bid to return to work as a Fire Instructor
(Mot. Summ. J. Ex. 9, ECF No. 33-10).
Isaacs argues the controlling date for the EEOC charge is
March 30, 2009, the date he reported to work as an instructor at
tentative until that point.
The Supreme Court of the United States
has held, however, that “entertaining a grievance complaining of
decision was in any respect tentative. The grievance procedure, by
its nature, is a remedy for a prior decision, not an opportunity to
influence that decision before it is made.”
(alteration in the original).
By Isaacs’s own admission, although
Ricks, 449 U.S. at 261
“[i]t was not what [his] heart desired,” (Isaacs Dep. 84:15, Jan.
5, 2013), he requested to be considered for the Fire Instructor
position because he otherwise would have been forced to retire from
the Fire Department and he intended to somehow remedy Dr. Levy’s
(Isaacs Dep. 83:1-20, 84:8-18).
communicated to the BCFD in December 2008, that he believed its
decision to prohibit him from returning to full Firefighting duties
(Compl. ¶ 28).
Thus, it is clear from the
undisputed facts in the record that the BCFD’s decision to deny
Isaacs the opportunity to return to full duty Firefighter status
was made and communicated to him no later than January 13, 2009,
the date on which Isaacs requested that Dr. Levy officially endorse
his bid to return to work as a Fire Instructor; more than 300 days
December 11, 2009.
Accordingly, Isaacs’s ADA claim (Count One)
will be dismissed as time-barred.
Isaacs’s Retaliation claim (Count Three) fails because he is
unable to establish a prima facie case of retaliation.
prohibits any person from discriminating “against any individual
because such individual ... made a charge ... under this chapter.”
retaliation under the ADA, a plaintiff must show (1) he engaged in
protected conduct; (2) he suffered an adverse employment action;
and (3) a causal link exists between the protected conduct and the
adverse employment action. A Soc’y Without a Name, 655 F.3d at 350.
First, Isaacs’s allegations that the BCFD retaliated against
Firefighter status fail.
Even assuming Isaacs met the first two
prongs to establish a prima facie claim of retaliation, he cannot
demonstrate a link between his filing of the EEOC charge and the
BCFD’s decision to deny him the opportunity to resume front-line
firefighting duties because the decision was made and communicated
process appears to have continued into 2011, Isaacs has alleged no
facts indicating that the BCFD’s refusals to reverse its previous
decision were themselves separate violations.5
Further, Isaacs’s allegation that the BCFD retaliated against
him by falsely charging him with misconduct similarly fails under
instance of misconduct charges brought against Isaacs related to an
incident that occurred on November 11, 2011.
First, a separation
of almost two years between the BCFD’s charge of misconduct and
Isaacs’s disability discrimination charge with the EEOC negates any
inference that a causal connection exists between the two.
Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d
See supra Section
employer becoming aware of the protected activity and the alleged
Second, the record is devoid of any allegation or evidence that the
misconduct, investigating the charge, conducting the disciplinary
hearing, or approving the suspension knew that he filed an EEOC
definition, an employer cannot take action because of a factor of
which it is unaware, the [decision maker’s] knowledge that the
plaintiff engaged in a protected activity is absolutely necessary
to establish the third element of the prima facie case.”).
Accordingly, Isaacs’s Retaliation claim (Count Three) fails as
a matter of law.
For the reasons given above, Defendants’ Motion for Summary
Judgment (ECF No. 33) is GRANTED.
A separate Order will follow.
Entered this 12th day of November, 2014
George L. Russell, III
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?