Bingman v. Baltimore County

Filing 57

MEMORANDUM AND ORDER denying 46 Motion for Summary Judgment; denying 47 Cross-Motion for Summary Judgment. Signed by Judge Marvin J. Garbis on 2/16/16. (ca2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
LARRY R. BINGMAN

*
Plaintiff

vs.

*
*

BALTIMORE COUNTY, MARYLAND

*

Defendant

CIVIL ACTION NO. MJG-13-2678

*

*

*

*

*

*

*

*

*

*

MEMORANDUM AND ORDER RE: SUMMARY JUDGMENT
The Court has before it Defendant's Motion for Summary
Judgment [ECF No. 46], Plaintiff's Cross-Motion for Summary
Judgment [ECF No. 47],1 and the materials submitted relating
thereto.

The Court has held a hearing and had the benefit of

the arguments of counsel.

I.

INTRODUCTION
Plaintiff Larry R. Bingman ("Bingman") was employed by

Defendant Baltimore County, Maryland ("the County") in 2006 as a
laborer.

His employment was terminated on July 3, 2010 due to

what the County contends was an inability to perform the
essential elements of his job.

On October 23, 2012, Bingman was

awarded Social Security disability benefits.
1

In this lawsuit,

The County, in its Reply [ECF No. 50], objects to this motion
as untimely. While the County may have a point, the motion does
not present matters that prejudice the County. Hence, the Court
will not deny the motion as late filed.

he sues the County for allegedly violating the Americans with
Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., seeking
reinstatement, compensatory damages for mental anguish and
hardship, punitive damages, and attorneys' fees.
The parties have filed the instant cross-motions for
summary judgment.

II.

SUMMARY JUDGMENT
A motion for summary judgment shall be granted if the

pleadings and supporting documents "show[] 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).
The well-established principles pertinent to summary
judgment motions can be distilled to a simple statement: the
Court may look at the evidence presented in regard to a motion
for summary judgment through the non-movant's rose-colored
glasses, but must view it realistically.

After so doing, the

essential question is whether a reasonable fact finder could
return a verdict for the non-movant or whether the movant would,
at trial, be entitled to judgment as a matter of law.

See,

e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir. 1991).
2

Thus,

in order to defeat a motion for summary judgment, "the party
opposing the motion must present evidence of specific facts from
which the finder of fact could reasonably find for him or her."
Mackey v. Shalala, 43 F. Supp. 2d 559, 564 (D. Md. 1999)
(emphasis added).
"Cross motions for summary judgment 'do not automatically
empower the court to dispense with the determination whether
questions of material fact exist.'"

Equal Rights Center v.

Archstone Smith Trust, 603 F. Supp. 2d 814, 821 (D. Md. 2009)
(quoting Lac Courte Oreilles Band of Lake Superior Chippewa
Indians v. Voigt, 700 F.2d 341, 349 (7th Cir. 1983)).

Rather,

the court must examine each party's motion separately and
determine whether summary judgment is appropriate as to each
under the Rule 56 standard.

Desmond v. PNGI Charles Town

Gaming, L.L.C., 630 F.3d 351, 354 (4th Cir. 2011).

The court

may grant summary judgment in favor of one party, deny both
motions, or grant in part and deny in part each of the parties'
motions.

See Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir.

2003).

III. DISCUSSION
A.

Background

In or about August 2006, Bingman was hired by the County to
work as a laborer assigned to Shop II Highways.
3

His duties

included a wide variety of intensive physical labor, including
pothole patching, permanent pavement repair, tree and bush
removal, litter cleanup, stream cleanup, grass cutting, and
concrete replacement.
On January 27, 2010, Bingman suffered a back sprain on the
job.

He received care from Concentra, the County's employee

health provider, several times following the injury.

On

February 24, 2010, Concentra placed Bingman on modified duty
with a lifting restriction.

However, although he was suffering

from pain and, at one point, a "lumbar strain," he was placed
back on regular duty on March 4, 2010.
At some date not identified by the parties but between
January 27, 20102 and March 26, 2010,3 Bingman filed a Workers'
Compensation Claim with regard to his back injury.

On April 6,

2010, in relation to the Workers' Compensation claim, an
independent medical examination conducted by Dr. Stephen Matz
found that Bingman had healed from his injury, but that his
prior medical history and significant back issues could keep him
from safely performing his duties.
On July 3, 2010, allegedly in response to Dr. Matz's
report, the County terminated Bingman's employment.
2

After his

The date of Bingman's injury.

3

The date of a letter from Mary Lader, a Workers' Compensation
Adjuster for the County, to Dr. Stephen Matz regarding Bingman's
claim. ECF No. 47-9.
4

termination, Bingman was provided, at the County's expense, a
term of vocational rehabilitation.

However, the provider did

not identify a position for which he was qualified.
Bingman's Workers' Compensation claim went to a hearing on
June 6, 2012, nearly two years after his termination.

On June

13, 2012, the Workers' Compensation Commission found that
Bingman suffered from an 8% disability resulting from the
January 2010 injury and awarded him $142.00 in "permanent
partial disability" benefits to be paid weekly for 40 weeks.
See Award of Comp. [ECF No. 47-4].
On June 19, 2012, Bingman applied for Social Security
Disability Insurance ("SSDI").

On October 23, 2012, he was

found disabled as of January 27, 2010 and awarded monthly SSDI
benefits of $1,192.00 retroactive to June 2011.

B.

The Issues
1.

Is Bingman a Qualified Individual?

The ADA provides, in pertinent part:
No covered entity shall discriminate against
a qualified individual on the basis of
disability in regard to . . . discharge of
employees . . . and other terms, conditions,
and privileges of employment.
42 U.S.C. § 12112(a).
A "qualified individual" is defined as:

5

[A]n
individual
who,
with
or
without
reasonable accommodation, can perform the
essential
functions
of
the
employment
position that such individual holds or
desires.
For
the
purposes
of
this
subchapter, consideration shall be given to
the employer's judgment as to what functions
of a job are essential, and if an employer
has prepared a written description before
advertising or interviewing applicants for
the
job,
this
description
shall
be
considered
evidence
of
the
essential
functions of the job.
42 U.S.C. § 12111(8).
A plaintiff claiming a violation of the ADA bears the
burden of establishing that he is a "qualified individual."
Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999).
Bingman has presented evidence that he was, in fact,
working on his job until the day he was terminated to establish
that he was able to perform his job functions "with or without
reasonable accommodations."

However, the County presents the

opinion of Dr. Matz, who performed an independent medical
evaluation.

Dr. Matz concluded that Bingman could not

"consistently, safely, and reliably perform the essential job
function (sic) of [a] Baltimore County laborer for the
Department of Highways."

See Matz Report [ECF No. 47-5] at 6.

On the evidence, the Court finds that a reasonable jury
could properly find for Bingman or for the County on the
Qualified Individual issue.

Thus, there are genuine issues of

material fact that prevent summary judgment for either side.
6

2.

Inquiry into Medical Issues

Bingman claims that the County violated the ADA by
inquiring into Bingman's prior medical issues.

In this regard,

he notes the relationship between the County and Concentra, the
County's medical provider, and asserts "Baltimore County gives
itself the right to own the entire medical history revealed by
each patient/employee that goes to Concentra."
No. 47-1] at 37.

Pl.'s Mem. [ECF

Bingman asserts that the County's access to

his medical information is, in and of itself, "an excessive
inquiry into the medical records of employees and a violation of
the ADA."

Id.

Bingman's contention appears to be based upon a subsection
of the ADA entitled "Prohibited examinations and inquiries,"4
which states:
A covered entity shall not require a medical
examination and shall not make inquiries of
an employee as to whether such employee is
an individual with a disability or as to the
nature or severity of the disability, unless
such examination or inquiry is shown to be
job-related and consistent with business
necessity.
42 U.S.C. § 12112(d)(4)(A).

The next subsection, entitled

"Acceptable examinations and inquiries," states in pertinent
part:

4

See Pl.'s Mem. [ECF No. 47-1] at 25 (citing ADA provisions).
7

A covered entity may make inquiries into the
ability of an employee to perform jobrelated functions.
Id. at (d)(4)(B).

An inquiry is "job-related and consistent

with business necessity" if an employer "has a reasonable
belief, based on objective evidence, that . . . an employee's
ability to perform essential job functions will be impaired by a
medical condition."

EEOC, Notice No. 915.002, Enforcement

Guidance: Disability-Related Inquiries and Medical Examinations
of Employees Under the Americans with Disabilities Act (2000),
available at http://www.eeoc.gov/policy/docs/guidanceinquiries.html.

Whether the County had a reasonable belief that

Bingman would be impaired in performing his essential job
functions presents factual questions.
Bingman contends that the independent evaluation conducted
by Dr. Stephen Matz went beyond the scope of the then-pending
workers' compensation claim, and that Dr. Matz relied on that
information to form his opinion.

Bingman refers to Dr. Matz's

report as "illegally solicited."

Id. at 45.

If Bingman is

contending that all or part of Dr. Matz's opinion should be held
inadmissible, he should file a motion in limine that clearly
states his contention.

8

3.

Judicial Estoppel

On his June 28, 2012 application for SSDI benefits, Bingman
may have5 provided January 27, 2010, the date of his injury, as
the onset date of his disability.

See Disability Determination

Explanation [ECF No. 46-6] at SSA.00004.

In reliance on his

application, the Social Security Administration ("SSA") awarded
him disability benefits, retroactive to June 2011.
The County contends that, by virtue of his SSDI
application, Bingman is judicially estopped from asserting in
the instant case that he was able to perform his job duties on
July 3, 2010, the date of his termination.
As stated by the United States Supreme Court:
[W]here a party assumes a certain position
in a legal proceeding, and succeeds in
maintaining
that
position,
he
may
not
thereafter, simply because his interests
have changed, assume a contrary position . .
. .
New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (internal
quotation marks omitted).
Judicial estoppel is a discretionary equitable doctrine,
applied on a case-by-case basis.

King v. Herbert J. Thomas

Mem'l Hosp., 159 F.3d 192, 196 (4th Cir. 1998) ("As an equitable
5

The "Disability Determination Explanation" provided by the
Social Security Administration [ECF No. 50-1] states that
Bingman "alleges inability to function and/or work as of
01/27/2010." ECF No. 46-6 at SSA.00004. However, the record
does not include any portion of Bingman's application in which
he referred to January 27, 2010 as his date of disability.
9

doctrine, judicial estoppel is invoked in the discretion of the
district court with the recognition that each application must
be decided upon its own specific facts and circumstances."
(citation omitted)).
A party is not judicially estopped from making an ADA claim
solely because the claimant filed for, and received, SSDI
benefits.

See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S.

795 (1999).

Indeed, "there are too many situations in which an

SSDI claim and an ADA claim can comfortably exist side by side"
for estoppel to be categorically required.

Id. at 802–03.

If there is a contradiction between a statement in
Bingman's SSDI application and his position in the instant case,
he "cannot simply ignore the apparent contradiction that arises
out of the earlier SSDI total disability claim.
must proffer a sufficient explanation."

Rather, [he]

Id. at 806.

However,

the County has not provided evidence of a specific statement in
Bingman's SSDI application that is necessarily inconsistent with
his claims in the present case.
"An SSA representation of total disability differs from a
purely factual statement in that it often implies a contextrelated legal conclusion, namely, 'I am disabled for purposes of
the Social Security Act,'" whereas a factual statement is
"'[t]he light was red/green,' or 'I can/cannot raise my arm
above my head.'"

Id. at 802.
10

Neither party has submitted Bingman's SSDI application in
its entirety.

Nowhere in the excerpts provided does Bingman

definitively assert, "I am disabled" or "I can no longer perform
the duties I used to perform as a laborer."

Bingman did state,

for example, that his injury impacted his ability to "work
longer, have more energy," and that "all my sensus [sic] are
getting bad."6
SSA.000039.

Exh. 5 to Def.'s Mot. [ECF No. 46-6] at

While such statements may present questions

regarding whether Bingman actually could perform his laborintensive job duties, this Court does not find them to
contradict directly his claim that he meets the definition of a
qualified individual in the instant case.
On the present record, the County shall not be granted
summary judgment based upon judicial estoppel.

However, the

Court is not holding that the County is prohibited from
presenting, at trial, evidence of statements made by Bingman in
the SSDI proceedings.

6

Other similar statements include that "[e]very thing has a
mental & physical affect [sic] & all my sensus [sic] are getting
worse getting older being able to survive its [sic] very hard on
a fixed income (depressing)." Exh. 5 to Def.'s Mot. [ECF No.
46-6] at SSA.000043. When asked what activities were affected
by his "illness, injuries, or conditions," Bingman checked every
listed item, including lifting, squatting, bending, standing,
reaching, walking, sitting, kneeling, stair climbing, using
hands, and completing tasks. Id. When asked how far he can
walk before he needs to stop and rest, Bingman replied that he
can walk for "10-20 minutes rest 10 minutes." Id.
11

IV.

CONCLUSION
For the foregoing reasons:
1.

Defendant's Motion for Summary Judgment [ECF No.
46] is DENIED.

2.

Plaintiff's Cross-Motion for Summary Judgment
[ECF No. 47] is DENIED.

3.

Plaintiff shall arrange a telephone conference to
be held by February 29, 2016 to set a trial date.

SO ORDERED, this Tuesday, February 16, 2016.

/s/__________
Marvin J. Garbis
United States District Judge

12