Issacs v. Baltimore City Fire Department et al

Filing 51

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
BRYAN ISSACS,

:

Plaintiff,

:

v.

:
Civil Action No. GLR-12-1060

BALTIMORE CITY FIRE
DEPARTMENT, et al.,

:
:

Defendants.
:
MEMORANDUM OPINION
THIS MATTER is before the Court on Defendants’, Mayor & City
Council

of

Baltimore

(the

“City”),

the

Baltimore

City

Fire

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).

See

For the reasons outlined below, the

Defendants’ Motion for Summary Judgment will be granted.
I. BACKGROUND1
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.

At some

point during this period, Dr. James Levy, Director of the BCFD’s

1
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
Training Academy.
After Isaacs returned to work as a training instructor on
March

30,

2009,

he

presented

several

specialized

physicians’

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
Firefighter
without

status

providing

despite
him

the

with

specialized

the

opportunity

medical
to

opinions

and

demonstrate

his

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
April

5,

2012.

discrimination

on

Isaacs
the

basis

asserts
of

five

disability

claims:
in

employment

violation

of

the

Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq.

2

(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
law

under

the

Fourteenth

Amendment

to

the

Constitution

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)
(Count Five).

On March 17, 2014, Defendants moved for Summary

Judgment on all counts.

(ECF No. 33).

The Motion is ripe for

disposition.
II. DISCUSSION
A.

Standard of Review
Under Federal Rule of Civil Procedure 56, the Court must grant

summary

judgment

if

the

moving

party

demonstrates

there

is

no

genuine issue as to any material fact, and the moving party is
entitled to judgment as a matter of law.

Fed.R.Civ.P. 56(a).

In reviewing a motion for summary judgment, the Court views
the

facts

in

a

light

most

favorable

to

the

non-moving

party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing
Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970)).

Once a

motion for summary judgment is properly made and supported, the
opposing party has the burden of showing that a genuine dispute
exists.

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

3

properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.”

Anderson, 477

U.S. at 247-48 (alteration in the original).
A “material fact” is one that might affect the outcome of a
party’s case.

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)).
fact

is

considered

to

be

“material”

is

determined

Whether a
by

the

substantive law, and “[o]nly disputes over facts that might affect
the

outcome

of

the

suit

under

the

governing

preclude the entry of summary judgment.”

law

will

properly

Anderson, 477 U.S. at

248; accord Hooven-Lewis, 249 F.3d at 265.
B.

Analysis
1. Proper Parties
At the outset, the City is the only proper Defendant to this

suit.

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.

Accordingly, Defendants

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.

See

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

4

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).

Accordingly, all

claims against the BCFD will be dismissed with prejudice.

Thus,

the City is the only remaining Defendant in this action.
2. Proper Claims
Additionally,
Summary

Judgment,

(Count Two).

in

his

Isaacs

Opposition
withdrew

(Opp’n 1 n.1).

his

to

Defendants’

race

Motion

discrimination

for

claim

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);
Clement

v.

Satterfield,

927

F.Supp.2d

297,

307

(W.D.Va.

2013)

(“[Section] 1981 does not prohibit discrimination on the basis of
disability.”).
under

§

Therefore,

1981,

the

City

insofar

will

be

as

Isaacs

granted

is

summary

seeking

relief

judgment

with

respect to Count Five.
3. Timeliness
Further, Isaac’s ADA claim (Count One) and § 1983 claim (Count
Four) will be dismissed as time-barred.
A

claim

for

a

violation

of

the

Fourteenth

Amendment

for

intentional employment discrimination under § 1983 is subject to
the

statute

of

limitations

that

5

the

forum

state

provides

for

general personal injury cases.
(1989).

In

Maryland,

the

Owens v. Okure, 488 U.S. 235, 250

general

statute

personal injury cases is three years.
Jud. Proc. § 5–101 (West 2014).

of

limitations

for

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
alleged

discrimination

occurred

more

than

three

years

April 5, 2012, the date Isaacs initiated this action.
Isaacs’s

§

1983

claim

(Count

Four)

will

be

prior

to

Accordingly,

dismissed

as

time-

barred.
In

employment

discrimination

lawsuits

brought

pursuant

to

Title I of the ADA, filing a charge of discrimination with the EEOC
tolls the ADA statute of limitations because Title I requires the
exhaustion

of

administrative

judicial action.2

remedies

prior

to

instituting

a

42 U.S.C. § 12117 (2012) (incorporating Title

VII’s requirement that a plaintiff file a charge with the EEOC
before

pursuing

a

suit

in

federal

court);

see

also

Sydnor

v.

Fairfax Cnty., Va., 681 F.3d 591, 593 (4th Cir. 2012) (finding the
same).

Thus,

whenever

an

incident

of

alleged

employment

discrimination occurs in Maryland, the aggrieved party is required

2
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)).

6

to file a complaint with the EEOC “within three hundred days after
the alleged unlawful employment practice occurred.” 42 U.S.C. §
2000e-5(e)(1) (2012).3
Here,

Defendants

dispute

the

timeliness

of

Isaacs’s

EEOC

charge.

Isaacs filed his EEOC Intake Questionnaire on December 11,

2009.

(Opp’n

Ex.

3,

at

4,

ECF

No.

44-3).

Under

certain

circumstances, an EEOC Intake Questionnaire may be construed as a
charge,

especially

initiate

a

Holowecki,

charge
552

where
of

U.S.

the

plaintiff

indicates

389,

419

(2008)

intent

to

See

discrimination.

the
Exp.

Corp.

v.

Fed.

(Thomas,

J.,

dissenting).

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
Thus,

the

Court

must

“identify

precisely

the

‘unlawful

employment practice’ of which [Isaacs] complains,” Del. State Coll.
v.

Ricks,

449

U.S.

250,

257

(1980),

and

the

discriminatory act took place, id. at 259.
occurs

at

the

time

the

discriminatory

precise

date

the

A discriminatory act

decision

was

made

and

communicated to the plaintiff, “not upon the time at which the
consequences of the acts became most painful.”

Id. at 258 (quoting

3
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.
4
The 300-day period preceding December 11, 2009 commenced
February 14, 2009. 

7

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],
allegations

that

affect

employee

the

rectify

its

past

the

discriminatory
or

that

violation

the
will

act

continues

employer
not

to

presently

satisfy

the

adversely
refuses

to

[statute

of

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
Cir.

1997)

(finding

no

continuing

violation

where

plaintiff

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

8

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.
1).

After

further

assessment,

on

December

4,

2008,

Dr.

at
Levy

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).

During the

December 4, 2008 meeting, Isaacs discussed with Dr. Levy whether he
could return to work as a Fire Instructor.
at

1).

On

January

13,

2009,

Isaacs

(Mot. Summ. J. Ex. 8,

requested

that

Dr.

Levy

officially endorse his bid to return to work as a Fire Instructor
in writing.

(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
the

Training

opportunity

to

Academy,
report

because
back

tentative until that point.

to

the

decision

fulltime

to

deny

Firefighter

him

the

status

was

The Supreme Court of the United States

has held, however, that “entertaining a grievance complaining of
the

[employment]

decision

does

not

suggest

that

the

earlier

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

9

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
recommendation

that

he

not

return

to

work

as

a

Firefighter.

(Isaacs Dep. 83:1-20, 84:8-18).
Additionally,

Isaacs

admits

in

his

Complaint

that

he

communicated to the BCFD in December 2008, that he believed its
decision to prohibit him from returning to full Firefighting duties
was discriminatory.

(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
before

he

filed

a

December 11, 2009.

charge

of

discrimination

with

the

EEOC

on

Accordingly, Isaacs’s ADA claim (Count One)

will be dismissed as time-barred.
4. Retaliation
Isaacs’s Retaliation claim (Count Three) fails because he is
unable to establish a prima facie case of retaliation.

The ADA

prohibits any person from discriminating “against any individual
because such individual ... made a charge ... under this chapter.”
42

U.S.C.

§

12203(a).

To

demonstrate

a

prima

facie

claim

of

retaliation under the ADA, a plaintiff must show (1) he engaged in

10

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
him

by

demoting

him

and

Firefighter status fail.

refusing

to

reinstate

him

to

full

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
to

him

before

he

filed

the

EEOC

charge.

While

the

grievance

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
the

causal

connection

element.

The

record

reflects

only

one

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.

See

Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d

5
See supra Section
violation theory).

II.B.3.

11

(rejecting

the

continuing

653,

657

(4th

Cir.

1998)

(“A

lengthy

time

lapse

between

the

employer becoming aware of the protected activity and the alleged
adverse

employment

inference

that

a

action,
causal

as

was

connection

the

case

exists

here,

between

negates
the

any

two.”).

Second, the record is devoid of any allegation or evidence that the
relevant

decision

makers

responsible

for

charging

him

with

misconduct, investigating the charge, conducting the disciplinary
hearing, or approving the suspension knew that he filed an EEOC
charge

of

disability

discrimination.

See

id.

(“Since,

by

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.
III. CONCLUSION
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
/s/
_____________________________
George L. Russell, III
United States District Judge

12