Sharma v. Howard County
MEMORANDUM. Signed by Judge James K. Bredar on 2/12/13. (apls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
HOWARD COUNTY, et al.,
CIVIL No. 12-cv-2269-JKB
Amit Sharma (“Plaintiff”) brought this suit against Howard County (the “County”), Ken
Ulman, Marsha McLaughlin, Todd Allen and Tom Butler (“Defendants”) alleging violations of
the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et seq., the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., MD. CODE ANN. STATE GOV’T § 20-606,
the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. § 2510, et seq., the Computer
Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030, et seq., and MD. CODE ANN. CRIM. LAW § 7302. Now pending before the Court is Defendants’ motion to dismiss (ECF No. 10). The issues
have been briefed and no hearing is required. Local Rule 105.6. For the reasons set forth below,
Defendants’ motion will be GRANTED IN PART and DENIED IN PART.
Plaintiff, who has a severe asthmatic condition, was employed as an engineer by the
Howard County Department of Planning and Zoning from July 2005 until January 3, 2011. (Am.
The facts are recited here as alleged by the Plaintiff, this being a motion to dismiss. See Ibarra v. United States,
120 F.3d 472, 474 (4th Cir. 1997).
Compl. ¶¶ 11-13, 47; ECF No. 7.) In October 2008, Plaintiff requested intermittent leave
pursuant to the FMLA and a reasonable accommodation under the ADA. (Id. ¶ 13.) From that
time until August 2010, Plaintiff took intermittent FMLA leave, apparently without issue. (Id. ¶¶
16-19.) In August 2010, Plaintiff received a negative performance evaluation, which indicated
(Id. ¶¶ 19-20.)
Plaintiff complained that the
performance evaluation inaccurately reflected the number of non-FMLA leave hours he had
taken; the County revised this portion of his evaluation but refused to adjust its rating in the
attendance category. (Id. ¶¶ 23, 24, 28.) In September 2010, Defendant McLaughlin issued
Plaintiff “a disciplinary action” and implemented a procedure by which Plaintiff was required to
notify his supervisor when he took FMLA leave. (Id. ¶¶ 30, 34.)
Plaintiff was disciplined under this new policy in October 2010, and Plaintiff registered at
least two written complaints with his employer during the same month. (Id. ¶ 39-42.) In
November 2010, Plaintiff “sent a written FMLA discrimination and retaliation complaint to the
County solicitor.” (Id. ¶ 43.) In December 2010, Defendant Allen instructed Plaintiff “to
‘immediately stop’ making FMLA complaints.” (Id. ¶ 41.) The County issued Plaintiff a charge
of dismissal on December 20, 2010, and “conducted a pre-termination hearing on January 3,
2011.” (Id. ¶ 46-47.) On January 4, 2011, “the County issued a Final Dismissal Decision.” (Id.
Defendants assert that Plaintiff appealed his termination to the Howard County Personnel
Board (the “Board”), “which concluded after a full evidentiary hearing[,] at which Mr. Sharma
was present and represented by counsel, that his termination was not ‘clearly erroneous, arbitrary
and capricious, or contrary to law.’” (Def. Br. at 7, ECF No. 10-1.) The Board’s decision “was
upheld by the Circuit Court for Howard County.” (Id.) Plaintiff alleges that Defendant Butler
“admitted under oath”—presumably at the Board hearing—that he undertook an investigation
into Plaintiff’s work activity “in response to the grievance that Plaintiff filed.” (Am. Compl. ¶¶
48, 49.) As part of this investigation, Defendant Butler “captured Plaintiff’s home computer
password by logging his keystrokes,” “hacked into Plaintiff’s personal computer located in his
home and reviewed Plaintiff’s personal health, financial, and privileged attorney-client
communications and materials related to his discrimination claims.” (Id. ¶¶ 52-53.)
A motion to dismiss under FED. R. CIV. P. 12(b)(6) is a test of the legal sufficiency of a
complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To pass this test, a
complaint need only present enough factual content to render its claims “plausible on [their]
face” and enable the court to “draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plaintiff may not,
however, rely on naked assertions, speculation, or legal conclusions. Bell Atl. v. Twombly, 550
U.S. 544, 556-57 (2007). In assessing the merits of a motion to dismiss, the court must take all
well-pled factual allegations in the complaint as true and construe them in the light most
favorable to the plaintiff. Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). If after
viewing the complaint in this light the court cannot infer more than “the mere possibility of
misconduct,” then the motion should be granted and the complaint dismissed. Iqbal, 556 U.S. at
Defendants assert that Plaintiff appealed his termination to the Howard County Personnel
Board, which ruled that his termination was not clearly erroneous, arbitrary and capricious, or
contrary to law. (Def. Br. at 7.) Plaintiff petitioned the Circuit Court for Howard County for
review of the Board’s decision; the court denied that petition. (Id.) Defendants argue that
Plaintiff is therefore collaterally estopped from “re-litigating the basis for his termination.” (Def.
Reply Br. at 2, ECF No. 19.)
Although Defendants argue that Plaintiff’s claims are barred by collateral estoppel, which
is also known as issue preclusion, some of Defendants’ arguments appear to fall under the
doctrine of res judicata, or claim preclusion. (See Def. Br. at 1 (“his claims are barred by
collateral estoppel”); Def. Reply Br. at 2 (“the record is undisputed that he had the opportunity
to include this claim but he never chose to do so”); id. at 3 (Plaintiff “had the opportunity to raise
his discrimination claims before the Personnel Board”).) The Court will therefore consider
Defendants’ brief to raise the defenses of issue and claim preclusion. Under either theory,
Defendants have failed to meet their burden of establishing that Plaintiff is precluded from
seeking relief for the claims in his amended complaint.
“Collateral estoppel or issue preclusion forecloses ‘the relitigation of issues of fact or
law that are identical to issues which have been actually determined and necessarily decided in
prior litigation in which the party against whom [it] is asserted had a full and fair opportunity to
litigate.’” Ramsay v. I.N.S., 14 F.3d 206, 210 (4th Cir. 1994) (citing Va. Hosp. Ass’n v. Baliles,
830 F.2d 1308, 1311 (4th Cir. 1987)). The proponent of the estoppel must establish five
elements: “(1) the issue sought to be precluded is identical to one previously litigated; (2) the
issue must have been actually determined in the prior proceeding; (3) determination of the issue
must have been a critical and necessary part of the decision in the prior proceeding; (4) the prior
judgment must be final and valid; and (5) the party against whom estoppel is asserted must have
had a full and fair opportunity to litigate the issue in the previous forum.” Sedlack v. Braswell
Servs. Group, Inc., 134 F.3d 219, 224 (4th Cir. 1998).
The Board’s order includes several pages of factual findings and conclusions of law.
(See Bd. Decision and Order at 12-17, ECF No. 4-3.) Unfortunately, Defendants have failed to
identify specific precluded issues that would prevent the Plaintiff from adequately pleading or
ultimately proving the employment-related claims asserted in the amended complaint.
Defendants assert that Plaintiff should be collaterally estopped from (1) relitigating “the basis for
his termination” (Pl. Br. at 2); (2) “alleging that his termination was unlawful or based upon
anything other than the reason upheld by the Circuit Court for Howard County” (Pl. Br. at 7);
and (3) relitigating “the question of [Plaintiff’s] termination” (id. at 8). However, although the
Board’s order includes general statements that the County’s decision to terminate Plaintiff
“comported with law,” the scope of the proceeding before the Board appears to have been quite
narrow. The Board determined that there was sufficient evidence to support Plaintiff’s dismissal
for violation of County policies against personal use of communication systems and
insubordination. (See Bd. Decision and Order at 16-17.) Based on the limited record in this
case, the Court cannot determine that the Board actually considered and necessarily resolved all
issues related to “the basis for his termination,” including all of the theories that Plaintiff asserts
in the amended complaint.
Defendants argue that Plaintiff should be precluded from litigating the basis for his
termination in this forum because he had the opportunity to raise all of his employment-related
claims before the Board. In support, they rely heavily on Davani v. Clement, 263 Fed. Appx.
296 (4th Cir. 2008), in which the Fourth Circuit affirmed the district court’s dismissal of a case
very similar to this one. In Davani, the plaintiff brought employment-related claims against a
Virginia state agency in federal court after challenging his termination through state employee
grievance procedures. Id. at 297. The Fourth Circuit affirmed the district court’s dismissal of
the case, holding that the claims were barred by collateral estoppel and res judicata. However,
Davani is readily distinguishable because Defendants have offered the Court very little
information about the proceeding before the Board.
In Davani, after “carefully review[ing] the record in the case,” the Fourth Circuit
determined that issues relevant to the federal litigation were actually litigated and necessarily
resolved in the prior proceedings. See id. at 298. The Fourth Circuit explained that the plaintiff
offered in the administrative proceeding a “voluminous collection of exhibits . . . to support his
claim that the [defendant] had subjected him to an ongoing campaign of discrimination and
retaliation.” Id. Indeed, the plaintiff’s counsel presented in the administrative proceeding
“precisely the same history of discrimination and retaliation that he [presented] in the federal
complaint.” Id. Furthermore, these issues had to be resolved in the administrative proceeding
because the administrative judge “had the authority and the responsibility to consider this
broader evidence as potential mitigation of the [defendant’s] disciplinary action against [the
plaintiff].” In Davani, the Fourth Circuit had enough information to determine that the relevant
issues were actually litigated and necessarily decided in the administrative proceeding.
In this case, Defendants have not offered the Court sufficient information to make a
similar determination. Defendants have offered the Court no information about the evidence
presented to the Board, no evidence that the Board considered Plaintiff’s allegations of
discrimination, and no explanation as to how such evidence would have been relevant to the
proceeding before the Board. The only evidence of the content of the Board’s proceedings that
Defendants have presented is a four-page excerpt of the transcript which, if anything, suggests
that the Board may not have considered Plaintiff’s FMLA and ADA claims. (Def. Reply Br. Ex.
1 at 3, ECF No. 19-1 (noting that Plaintiff did not file formal FMLA or ADA appeals with the
Therefore, the Court cannot conclude at this time that dispositive issues in this
litigation were actually litigated before the Board, actually determined by the Board, or
necessary for the Board’s decision.
To the extent that Defendants argue that Plaintiff’s claims are barred as res judicata, they
have failed to meet their burden on that front as well. Generally, “[f]or res judicata to prevent a
party from raising a claim, three elements must be present: ‘(1) a judgment on the merits in a
prior suit resolving (2) claims by the same parties or their privies, and (3) a subsequent suit based
on the same cause of action.’” Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 210
(4th Cir. 2009) (quoting Aliff v. Joy Mfg. Co., 914 F.2d 39, 42 (4th Cir. 1990)). However, state
law controls the preclusive effect of a state judgment. See Wright & Miller, 18 FED. PRAC. &
PROC. JURIS. § 4412 (2d ed.).
Defendants have not established that Plaintiff’s employment-related claims are precluded
by Maryland law because he failed to assert those claims before the Board. First, Defendants
have failed to establish that “[Plaintiff] had the opportunity to include [his employment-related
claims before the Board] but he never chose to do so in the procedurally required manner.” (Def.
Reply Br. at 2.) In support of this proposition, Defendants cite the four-page excerpt of the
Board proceeding transcript. Although the Court agrees that one interpretation of the excerpt is
that Plaintiff had the opportunity to argue his various employment discrimination claims before
the Personnel Board and failed to do so, the brief excerpt is hardly conclusive. Defendants have
offered no information about the Board’s jurisdiction or procedural requirements, and no
explanation as to whether Plaintiff is required to proceed before the Board in the first instance or
chose to do so.
Second, Defendants have not offered sufficient authority for the proposition that
Plaintiff’s claims are barred under Maryland law if he could have raised them in the original
proceeding. Importantly, res judicata may not apply if Plaintiff could not there rely on a certain
theory of the case or obtain the remedy that he seeks in this forum. See Esslinger v. Baltimore
City, 622 A.2d 774, 782 (Md. Ct. Spec. App. 1993); compare Davani, 263 Fed. Appx. at 299
(“Having made those choices, however, he committed himself to the results of those
proceedings, including the fact that any subsequent attempt to relitigate his discharge would
constitute claim-splitting under Virginia law.”).
For the reasons stated above, Defendants have failed to establish that Plaintiff’s
employment-related claims are barred by issue or claim preclusion. However, res judicata and
the related preclusion concepts are affirmative defenses, and Defendants will have the
opportunity to raise these defenses again (e.g., in an eventual motion for summary judgment). It
is entirely possible that a full review of the record will reveal that Plaintiff should be barred from
seeking relief for some or all of his claims.
Plaintiff has failed to adequately plead the elements of his claim for unlawful interference
with an entitlement to FMLA benefits (which Plaintiff incorrectly describes as FMLA
discrimination2). The FMLA makes it “unlawful for any employer to interfere with, restrain, or
The provision in the FMLA that prohibits “discrimination” is generally analyzed as a prohibition against retaliation
for complaints about interferences with an employee’s attempt to exercise his or her rights under the FMLA. See 29
deny the exercise of or the attempt to exercise, any right provided under this subchapter.” 29
U.S.C. § 2615(a)(1). The required elements of an FMLA interference claim are that (1) Plaintiff
was an eligible employee; (2) Plaintiff’s employer was covered by the statute; (3) Plaintiff was
entitled to leave under the FMLA; (4) Plaintiff gave his employer adequate notice of his
intention to take leave; and (5) the employer denied Plaintiff FMLA benefits to which he was
entitled.” Rodriguez v. Smithfield Packing Co., Inc., 545 F. Supp. 2d 508, 516 (D. Md. 2008)
(citing Edgar v. JAC Prods., Inc., 443 F.3d 501, 507 (6th Cir. 2006)). The amended complaint
does not state a claim for FMLA interference because it fails to allege that the County denied
Plaintiff any benefits to which he was entitled under the FMLA. In fact, the amended complaint
recounts that Plaintiff requested and was granted leave to which he was entitled under the
FMLA. (See Am. Compl. ¶¶ 13-17.)
However, Plaintiff has adequately stated a claim for retaliation under the FMLA. In
order to state a claim for retaliation under the FMLA, Plaintiff must allege (1) that he engaged in
protected activity; (2) that the employer took adverse action against him; and (3) that the adverse
action was causally connected to the Plaintiff’s protected activity. Yashenko v. Harrah’s NC
Casino Co., 446 F.3d 541, 551 (4th Cir. 2006). Plaintiff has adequately pleaded facts to support
each of these required elements.
Plaintiff alleges that his employer gave him a negative performance review, which
indicated that he failed to meet acceptable standards in a performance category titled
“Accountability/Attendance/Punctuality.” (Am. Compl. ¶¶ 19-20.) Plaintiff alleges that he filed
a complaint about this performance evaluation, arguing that it inaccurately reported the number
of non-FMLA leave hours he had taken; Defendants subsequently revised the performance report
U.S.C. § 2615(a)(2) (making it “unlawful for an employer to discharge or in any other manner discriminate against
any individual for opposing any practice made unlawful by this subchapter”). For this reason, it is confusing to
describe FMLA interference claims as FMLA discrimination claims.
to reflect that the original report overstated the number of non-FMLA leave hours Plaintiff had
taken, but refused to adjust Plaintiff’s rating in the attendance category. (Id. ¶¶ 23, 24, 28.)
Plaintiff describes his complaint about the inflated number of non-FMLA hours as a complaint
“about the Defendant’s illegal use of his FMLA time as a negative factor in Defendant’s
employment actions.” (Id. ¶ 29.) Taken together, the necessary implication of these allegations
is that the original negative performance review counted Plaintiff’s FMLA leave hours as nonFMLA leave hours.3 Registering a complaint with an employer about such a practice is the most
basic way that an employee could “oppos[e] [a] practice made unlawful” by the FMLA.” See 29
U.S.C. 2615(a)(2). Therefore, Plaintiff has adequately pled that he engaged in activity protected
by the FMLA.
Defendants argue that there could not have been a causal connection between Plaintiff’s
complaints and his termination, because “he had been complaining regarding the FMLA for
some time before he was terminated.” Although it is true that a long delay between the protected
activity and the adverse action can undercut the inference of a causal connection, Defendants
have not identified such a delay in this case. Plaintiff alleges that he sent written complaints of
FMLA interference and retaliation to various entities and people in October, November and
December 2010, and that he received increasingly hostile responses to these complaints. (See
Am. Compl. ¶¶ 41-45.)
It is plausible that he was terminated because of this series of
complaints. Plaintiff has adequately pleaded facts to support his FMLA retaliation claim.
Although it would have been helpful for Plaintiff to make this allegation more succinctly, the amended complaint
adequately conveys the allegation.
ADA and Related State Law Claims
Plaintiff has failed to state a claim for discrimination or retaliation under the ADA or MD.
CODE ANN. STATE GOV’T § 20-606.4 In order to state a claim for discrimination under the ADA,
Plaintiff must allege facts to support the following elements: (1) he is within the ADA’s
protected class; (2) he was discharged (or suffered other adverse employment action); (3) at the
time of his discharge, he was performing the job at a level that met his employer’s legitimate
expectations; and (4) his discharge occurred under circumstances that raise a reasonable
inference of unlawful discrimination. See Haulbrook v. Michelin N. Am., 252 F.3d 696, 702 (4th
Cir. 2001); EEOC v. Stowe-Pharr Mills, Inc., 216 F.3d 373, 377 (4th Cir. 2000). Plaintiff alleges
that he informed Defendants of his asthmatic condition in 2008, but he was not dismissed until
January 2011. (Am. Compl. ¶¶ 13, 14, 47.) He fails to allege any additional facts to support the
inference that he was terminated because of his disability. In light of the long period of time that
elapsed between Plaintiff’s disclosure of his condition and his dismissal, Plaintiff has failed to
plead facts sufficient to support the inference that he was discharged because of that condition.
In order to state a claim for retaliation under the ADA, Plaintiff must allege that (1) he
engaged in protected activity; (2) his employer took an adverse action against him; and (3) that a
causal connection existed between the adverse activity and the protected action. Haulbrook, 252
F.3d at 706. Plaintiff has failed to plead facts sufficient to support the inference that he engaged
in activity protected by the ADA.
Plaintiff alleges that he requested “a reasonable
accommodation” for his disability on October 24, 2008. (Am. Compl. ¶ 13.) He further alleges
that he sent a letter to the acting district director of the U.S. Department of Labor on December
7, 2010, complaining of ADA violations. (Id. ¶ 45.) Finally, Plaintiff alleges that “one of
Because the same elements are required to establish a prima facie case under these two statutes, the Court will
analyze them together.
Plaintiff’s superiors admitted under oath . . . that he instituted [an] investigation in response to
the grievance that Plaintiff filed against the Defendant alleging, among other things, retaliation
under the [ADA].” (Id. ¶ 49.) However, the amended complaint does not disclose the details of
Plaintiff’s requested accommodation or the details of his ADA grievances.
therefore failed to plead facts sufficient to support the inference that Plaintiff’s actions
constituted protected activity, and the ADA retaliation claim must therefore be dismissed.
The amended complaint adequately states a claim for which relief can be granted under
the ECPA. Section 2511(1)(a) prohibits any person from intentionally intercepting any wire,
oral or electronic communication. The statute defines “intercept” to mean “the aural or other
acquisition of the contents of any wire, electronic, or oral communication through the use of any
electronic, mechanical, or other device.” 18 U.S.C. § 2510(4). Plaintiff alleges that Defendants
“hacked into [his] personal computer located in his home” and reviewed personal email
communication between Plaintiff and his attorney. (Am. Compl. ¶¶ 53, 54.) Relief can be
granted for this violation because, although the Parties failed to address it in their papers, federal
law provides a civil remedy for violations of the ECPA. “[A]ny person whose wire, oral, or
electronic communication is intercepted, disclosed, or intentionally used in violation of this
chapter may in a civil action recover from the person or entity, other than the United States,
which engaged in that violation such relief as may be appropriate.” See 18 U.S.C. § 2520(a).
Plaintiff has therefore stated a claim under the ECPA for which relief can be granted.
The amended complaint fails to state a claim for which relief can be granted under the
CFAA, which provides a private right of action for recovery of damages under limited
circumstances. 18 U.S.C. § 1030(g). In order for the amended complaint to state a cause of
action under CFAA, it must allege that the violation caused at least $5,000 in economic damages.
See Global Policy Partners, LLC v. Yessin, 686 F. Supp. 2d 642, 646-47 (E.D. Va. 2010). The
Fourth Circuit recently held that this provision allows for recovery of “consequential damages . .
. [meaning] costs incurred as part of the response to a CFAA violation, including the
investigation of an offense.” A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630, 646 (4th
Cir. 2009). Plaintiff asserts in his brief that he incurred costs as a result of his counsel’s
investigation of the alleged CFAA violation. But the amended complaint does not allege that
Plaintiff incurred costs as a result of this investigation or that those costs aggregated to at least
$5,000. Therefore, Plaintiff’s CFAA claim must be dismissed.
Defendants have failed to establish that Plaintiff’s claim for relief under MD. CODE ANN.
CRIM. LAW § 7-302 should be dismissed. Under both Maryland and federal law, “not every
violation of the criminal law constitutes a tort, nor does the criminal law automatically impose a
tort duty upon one person that is owed to another.” Wilmington Trust Co. v. Clark, 424 A.2d
744, 753 (Md. 1981). However, Defendants’ briefs do not identify the standards for determining
whether a criminal statute creates an implied private right of action. Similarly, Defendants fail to
address when it is appropriate under Maryland law to impose tort liability for violations of a
criminal statute. Most importantly, Defendants fail to present any argument that Maryland law
does not recognize tort liability for the Defendants’ alleged violations of Maryland criminal law
in this case. Defendants have therefore failed to carry their burden of establishing that Plaintiff
is not entitled to relief under MD. CODE ANN. CRIM. LAW § 7-302.5
The Court notes that Defendants’ briefs failed in a number of ways to meet the standards that the Court expects of
its attorneys. In their opening brief, Defendants advocated for dismissal under a theory that is foreclosed by
dispositive Fourth Circuit precedent. In several other respects—including their failure to recognize that the
amended complaint asserts claims pursuant to two federal criminal statutes, not one—the briefs were confusing and
misleading. The Court expects that future submissions will reflect appropriate familiarity with the record and
Accordingly, an order shall issue GRANTING IN PART and DENYING IN PART
Defendants’ motion to dismiss (ECF No. 10).
Dated this 12th day of February, 2013
BY THE COURT:
James K. Bredar
United States District Judge
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