Thomas v. City of Annapolis, Maryland et al

Filing 62

MEMORANDUM OPINION. Signed by Magistrate Judge Beth P. Gesner on 9/4/2018. (kw2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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JASON THOMAS,
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Plaintiff,
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v.

Civil No.: BPG-16-3823
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CITY OF ANNAPOLIS, et al.,
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Defendants.
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MEMORANDUM OPINION
Plaintiff Jason Thomas (“Thomas,” or “plaintiff”) brings this employment discrimination
action against defendants City of Annapolis, Maryland (“City”), City of Annapolis Police
Department (“APD”), and APD Chief Michael Pristoop (“Chief Pristoop”),1 (collectively,
“defendants”), alleging violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. §§ 2000e, et seq., the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12111, et
seq., 42 U.S.C. § 1981, and 42 U.S.C. § 1983, based on a series of events which resulted in his
termination from his position as a police officer with APD. Currently pending before the court
are: (1) Defendants’ Motion for Summary Judgment (“Defendants’ Motion”) (ECF No. 51); (2)
Plaintiff’s Opposition to Defendants’ Motion (“Plaintiff’s Opposition”) (ECF No. 54); and (3)
Defendants’ Reply in Further Support of Its Motion for Summary Judgment (“Reply”) (ECF No.
52). A hearing was held on February 13, 2018. (ECF No. 47). After the hearing, the court
reopened discovery to allow for additional discovery and asked for supplemental briefing on the

1

Chief Pristoop is only named in Count VII. For ease of reference, however, the term “defendants” is used
throughout this opinion although the only defendants named in the remaining counts are the City and APD.

results of the additional discovery.

(ECF No. 48).

These supplemental briefs were also

considered in resolving this Motion. (ECF Nos. 55 and 60).2 The issues have now been fully
briefed, and no additional hearing is necessary. Loc. R. 105.6. For the reasons stated below,
Defendants’ Motion (ECF No. 51) is granted.

I.

BACKGROUND
In ruling on a motion for summary judgment, this court considers the facts and draws all

reasonable inferences in the light most favorable to the nonmoving party, which is the plaintiff in
this case. Scott v. Harris, 550 U.S. 372, 378 (2007).
Plaintiff was hired by APD on February 12, 2013. (ECF No. 51-7). On March 9, 2014,
plaintiff sustained an injury to his left knee and lower back while on the job. (ECF No. 54 at 2,
ECF No. 54-4). Plaintiff sought treatment from Dr. Joel Fetcher for these injuries. (ECF No. 544).

On April 24, 2014, Chief Michael Pristoop assigned plaintiff to the “Administrative

Support/Medical” section, also known as light duty work.

(ECF No. 54-5).

Dr. Fletcher

performed surgery on plaintiff’s knee on June 10, 2014. (ECF No. 51-14). Plaintiff returned to
light duty on August 12, 2014. (ECF No. 51-1 at 3).
On November 10, 2014, Dr. Mark Rosenthal conducted an independent medical
examination (“IME”) of the plaintiff, in connection with plaintiff’s workers’ compensation
request from the March 9 injury, to determine whether plaintiff could return to full duty. (ECF
No. 51-9). Dr. Rosenthal concluded that plaintiff could return to work “full time, full duty,
limited only by his knee” and that “[t]here is 0% impairment due to the injury of March 9, 2014.”
Id. On April 29, 2015, plaintiff had a follow up appointment with Dr. Fetcher during which the

2

 Because the parties’ pleadings refer to non-party comparators, they have filed both sealed (ECF Nos. 49, 50, 55,
58, 59) and unsealed versions of their papers which only differ as to specific mention of the comparators’ name.
References herein are to the unsealed pleadings.

2 

doctor recommended plaintiff undergo a functional capacity evaluation (“FCE”) to better
determine his functional limitations, determine if a second surgery was necessary, and assess
plaintiff’s continued pain and difficulty post-surgery. (ECF No. 1-7).
On May 13, 2015, while still on light duty, plaintiff filed an application with the City’s
Human Resources Director, Mr. Paul Rensted, for a service-connected disability retirement.
(ECF No. 51-12). On May 18, 2015, Dr. Stanley Friedler conducted a second IME of the
plaintiff in connection with plaintiff’s application for a service-connected disability retirement.
(ECF No. 51-14).

Dr. Friedler was provided with all of plaintiff’s medical records and

concluded that plaintiff “is able to work . . . [but] he should avoid squatting and kneeling, when
possible.” Id. Two days later, on May 20, 2015, plaintiff returned to Dr. Fetcher complaining of
continued pain and difficulty in his left knee. (ECF No. 59-4). Dr. Fetcher recommended that
plaintiff be restricted “on a permanent basis to light duty work with no standing or walking more
than 30 minutes without a break.” Id.
On June 2, 2015, Mr. Rensted denied plaintiff’s application for a service-connected
disability retirement because he did not meet the criteria under Annapolis City Code. (ECF No.
51-16). Mr. Rensted informed Chief Pristoop and Captain Amoia that plaintiff had undergone an
IME, that his application for disability retirement had been denied, and that Dr. Friedler had
cleared plaintiff to return to full duty work. (ECF No. 51-19). On June 3, 2015, Captain Amoia
and Lieutenant Brian Antal met with plaintiff to discuss the results of his IME, his disability
application, and his returning to work. Id. Based on the results of the IME and Mr. Rensted’s
denial of plaintiff’s disability retirement application, plaintiff was ordered to return to work on
June 7, 2015. Id. Plaintiff, however, did not feel he was ready to return to full duty work and
voiced these concerns at this meeting. Id. Due to minor requalification issues, plaintiff returned

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to work on June 9, 2015 and reinjured his knee that day getting into his patrol car. Id. Plaintiff
returned to light duty thereafter. (ECF No. 51-20).
On June 11, 2015, plaintiff filed an appeal of Mr. Rensted’s decision denying his
disability retirement application with the Annapolis City Public Safety Disability Retirement
Board. (ECF No. 51-22). On July 1, 2015 a conference call took place between Mr. Rensted,
Chief Pristoop, Captain Amoia, Lieutenant Antal, and Mary O’Brien, the City’s Risk Analyst, to
discuss plaintiff’s situation. (ECF No. 51-23). It was decided plaintiff would be offered the role
of Police Records Specialist, which plaintiff had been doing while on light duty, to allow
plaintiff to remain employed without impacting his reported physical limitations. Id. On July 7,
2015, Chief Pristoop and Lieutenant Antal met with plaintiff to offer him the vacant position of
Police Records Specialist. (ECF No. 51-25). They explained that while this job was at a lower
grade than his current role as police officer, plaintiff was being offered the role at the highest
grade possible for the position so he could remain close to the grade he had as a police officer.
Id.
On July 20, 2015, plaintiff declined the offer of Police Records Specialist in a meeting
with Captain Amoia and Corporal Justin Klinedinst. (ECF No. 51-26). Captain Amoia informed
plaintiff that the City could not continue to employ plaintiff in a light duty position. Id. Captain
Amoia informed plaintiff he could use up any remaining paid leave time or that he could go on
leave without pay because the most recent injury was not covered as a new work related injury,
because it was related to plaintiff’s first injury on March 9, 2014. Id. Plaintiff asked how much
leave time he had available, which Captain Amoia provided, and then the meeting concluded.
Id. Plaintiff was on FMLA leave from July 21, 2015 to October 13, 2015. (ECF No. 51-27).

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Plaintiff also applied for and received short term disability payments from August 4, 2015 to
November 8, 2015. (ECF No. 51-28).
On October 20, 2015, plaintiff filed a charge of discrimination with the Maryland
Commission on Civil Rights (“MCCR”) against the APD, alleging discrimination on the basis of
race and disability, as well as retaliation. (ECF No. 51-29). Plaintiff requested that this charge
also be filed with the Equal Employment Opportunity Commission (“EEOC”). Id. On October
26, 2015, Dr. Leslie Matthews conducted a third IME of plaintiff to get an updated medical
evaluation of plaintiff for his workers’ compensation claim from the second injury. (ECF No.
54-11). Dr. Matthews concluded that plaintiff was not capable of returning to full duty police
work due to his knee and that he should avoid running, prolonged standing, climbing hills or
stairs, squatting, stooping or kneeling.3 Id.

On April 29, 2016, plaintiff’s appeal of Mr.

Rensted’s decision denying his disability retirement application was affirmed by the Public
Safety Disability Retirement Board of the City of Annapolis. (ECF No. 51-31).
In an effort to obtain updated medical information and doctors’ notes while plaintiff was
on leave, Lieutenant Brian Antal, per his affidavit, called plaintiff six times (November 5, 2015;
November 23, 2015; January 11, 2016; February 11, 2016; May 13, 2016; and May 31, 2016)
and left a voicemail each time. (ECF No. 51-32). None of his calls were returned. Id. On
November 23, 2015, Ms. Kimberly Ellis, the Police Administrative Specialist, sent plaintiff an
email requesting current medical documentation. (ECF No. 51-33). Defendants allege plaintiff
never responded to this email and plaintiff has offered no proof that he did. (ECF No. 51-1 at 9–
10). On November 24, 2015 and January 12, 2016, Captain Amoia spoke with plaintiff during
the appeal hearings before the Public Safety Disability Retirement Board of the City of

3

As discussed later in this opinion, the denial of disability by Mr. Rensted preceded this IME. Thus, it was not
considered when plaintiff’s application for service-connected disability retirement was decided.

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Annapolis. (ECF No. 51-34). Captain Amoia informed plaintiff that he was still an APD
employee and that he was required to provide the department with updated information
concerning his physical status for departmental needs. Id. There is no evidence of record that
plaintiff ever responded to any communications from the APD, provided the APD with any
updated medical information, or communicated with the APD at any time after the interaction
with Captain Amoia in January 2016.
On June 13, 2016, Chief Pristoop sent plaintiff a notice of termination of employment
with the City effective July 1, 2016. (ECF No. 51-35). The stated reason for termination was
unsatisfactory work performance in connection with plaintiff’s “unwillingness to return to work
as a police officer” and refusal to contact or return communications from his superiors. Id. On
August 26, 2016, the EEOC issued a Notice of Right to Sue to plaintiff. (ECF 1-8, at 4).
Plaintiff filed the instant case before this court on November, 28, 2016. (ECF No. 1).4
In the Amended Complaint, plaintiff alleges that he suffered race and disability based
employment discrimination as well as retaliation. (ECF No. 16 at 14–24). Specifically, plaintiff
alleges that the decisions to deny him service-connected disability retirement and to deny his
request for a functional capacity evaluation (“FCE”) 5 were racially motivated as he is African
American and that comparable Caucasian officers are not denied such requests. Id. at 14.
Plaintiff contends that Caucasian officers receive better treatment in the disability retirement
application review process because defendants afford greater weight to the opinions of Caucasian
officers’ treating physicians than to the opinions of African American officers’ treating

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On January 3, 2017, plaintiff filed a second charge of discrimination with the MCCR on the basis of age and race.
(ECF No. 51-35).

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Plaintiff has failed to offer any evidence proving that an FCE request was made, or when it was made. The only
evidence plaintiff offers regarding an FCE are statements by his doctor that “we are going to get him a functional
capacity evaluation.” (ECF No. 1-7). More importantly, plaintiff has made no attempt to establish how a refusal to
approve an FCE was causally related to alleged racial discrimination against him, which is required for establishing
a prima facie case.

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physicians. Id. More specifically, plaintiff alleges that, when reviewing his application for
disability retirement, defendants ignored the diagnosis and recommendations of his treating
physician, yet gave more weight to the opinions of the treating physicians of the Caucasian
officers when reviewing their applications. Id. Plaintiff alleges that defendants discriminated
against him on the basis of his disability and failed to properly accommodate him. Id. at 16–17.
Finally, plaintiff alleges that defendants retaliated against plaintiff by not approving his FCE
request, ignoring his treating physician’s recommendations when denying his retirement
disability, placing plaintiff on leave without pay, and terminating him in violation of Title VII
and the ADA. Id. at 18.

II.

STANDARD OF REVIEW
Summary judgment is appropriate when “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). A genuine
dispute remains “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is
properly considered “material” only if it might affect the outcome of the case under the
governing law. Id. The party moving for summary judgment has the burden of demonstrating
the absence of any genuine issue of material fact. Fed. R. Civ. P. 56(a); Pulliam Inv. Co., Inc. v.
Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). On those issues for which the non-moving
party will have the burden of proof, however, it is his or her responsibility to oppose the motion
for summary judgment with affidavits or other admissible evidence specified in Federal Rule of
Civil Procedure 56. Fed. R. Civ. P. 56(c); Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1315–16
(4th Cir. 1993). If a party fails to make a showing sufficient to establish the existence of an

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essential element on which that party will bear the burden of proof at trial, summary judgment is
proper. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
When reviewing a motion for summary judgment, the court does not evaluate whether the
evidence favors the moving or non-moving party, but considers whether a fair-minded jury could
return a verdict for the non-moving party on the evidence presented. Anderson, 477 U.S. at 252.
In undertaking this inquiry, the court views all facts and makes all reasonable inferences in the
light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). The non-moving party, however, may not rest on its pleadings,
but must show that specific, material facts exist to create a genuine, triable issue. Celotex, 477
U.S. at 324. A “scintilla” of evidence in favor of the non-moving party, however, is insufficient
to prevent an award of summary judgment.

Anderson, 477 U.S. at 252.

Further, “mere

speculation” by the non-moving party or the “building of one inference upon another” cannot
create a genuine issue of material fact. Cox v. Cnty. of Prince William, 249 F.3d 295, 299–300
(4th Cir. 2001). Summary judgment should be denied only where a court concludes that a
reasonable jury could find in favor of the non-moving party. Anderson, 477 U.S. at 252.

III.

DISCUSSION
A. Race Discrimination in Violation of Title VII
Count I of plaintiff’s Amended Complaint alleges the City and APD discriminated

against him on the basis of his race in violation of Title VII.

(ECF No. 16 at 14–15).

Discrimination under Title VII may be proved either by direct or indirect evidence of
discrimination or by utilizing the McDonnell Douglas burden-shifting framework. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the McDonnell Douglas

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burden-shifting framework, the plaintiff must first establish a prima facie case for discrimination.
Id. If the plaintiff proves a prima face case, the burden shifts to the employer to produce
evidence of a non-discriminatory, legitimate reason for the action. Hoyle v. Freightliner, LLC,
650 F.3d 321, 336 (4th Cir. 2011). If the employer provides such a reason, the burden shifts
back to the plaintiff to prove that defendant’s reason was pretext for unlawful discrimination.
Love-Lane v. Martin, 355 F.3d 766, 786 (4th Cir. 2004).
Title VII prohibits an employer from “discharg[ing] any individual, or otherwise ...
discriminat[ing] against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's race.” 42 U.S.C.A. § 2000e–2(a). In his
Amended Complaint, plaintiff asserts that he was discriminated against on the basis of his race
when defendants ignored his treating physicians’ opinions in connection with the review of his
application for a service-connected retirement disability, when they placed him on leave without
pay, and when they terminated him. (ECF No. 16 at 14). Plaintiff does not claim he has direct
or indirect evidence of discrimination, and, thus, he relies on the McDonnell-Douglas
framework. (ECF No. 54 at 13). In order to prove a prima facie case of discrimination, plaintiff
must prove: (1) membership in a protected class; (2) satisfactory job performance; (3) adverse
employment action; and (4) different treatment from similarly situated employees outside the
protected class. Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010). In
this case, it is undisputed that plaintiff, an African American male, is a member of a protected
class. It is also undisputed that he suffered an adverse employment action when he was placed
on administrative leave without pay and, ultimately, when he was terminated.6 Thus, elements
one and three are satisfied.

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Plaintiff argues that the denial of disability retirement constitutes an adverse employment action. Plaintiff offers
no legal support for this proposition. Defendants briefly argue that a denial of disability retirement does not

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As to the second factor, whether plaintiff was satisfactorily performing his job, plaintiff
provides evidence of positive employee reviews from earlier in his employment with the City.
(ECF No. 54-15). Plaintiff, however, misconstrues the time frame applicable in analyzing this
element. The time frame relevant to assessing the employee’s performance is “at the time of the
adverse employment action,” not earlier in the employee’s employment history. Holland v.
Washington Homes, Inc., 487 F.3d 208, 214 (4th Cir. 2007). Here, the relevant time frame for
the two adverse employment actions were when plaintiff: (1) was placed on administrative leave
without pay and (2) was terminated. Between November 2015 and June 2016, the dates of the
two adverse employment actions, plaintiff was on administrative leave without pay, but still
employed by the City. (ECF No. 51-25; 51-27; 51-28). Defendants attempted to contact
plaintiff on multiple occasions to receive updates on plaintiff’s status and get updated medical
documentation from plaintiff.

(ECF No. 51-32; 51-33; 51-34).

Defendants left multiple

voicemail messages, emailed plaintiff several times, and reminded plaintiff in person at his
disability appeal hearing of the need to stay in contact with the City. Id. None of the messages
were returned. (ECF No. 51-1 at 15). Defendants maintain that during this time period, plaintiff
was not meeting defendants’ legitimate expectations. (ECF No. 51-1 at 13–16).
Plaintiff contends that there was “no legitimate basis” for these repeated communications,
that defendants were informed to communicate through plaintiff’s counsel, that plaintiff had

constitute an adverse employment action. (ECF No. 52 at 9). An adverse employment action “‘constitutes a
significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in benefits.’ ” Hoyle, 650 F.3d at 337 (quoting
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998). Typically, an adverse employment action has been
found in cases of “discharge, demotion, decrease in pay or benefits, loss of job title or supervisory responsibility, or
reduced opportunities for promotion.” Boone v. Goldin, 178 F.3d 253, 255 (4th Cir. 1999). Thus, it does not appear
that a denial of disability retirement benefits constitutes an adverse employment action. Both parties, however,
thoroughly discuss whether the comparators are similarly situated regarding the disability retirement process, and
plaintiff summarily asserts, without discussion, that the comparators are relevant to all adverse actions at issue here.
While the parties’ analysis on this issue is confusing at best, the court will fully discuss the comparators identified
by plaintiff.

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never received a poor performance review, and that any failure to return phone calls “could not
be considered unsatisfactory performance.” (ECF No. 51-1 at 21).

Plaintiff’s claim of

satisfactory performance “cannot establish a genuine issue as to whether [plaintiff] was meeting
[his employer’s] expectations.” King v. Rumsfeld, 328 F.3d 145, 149 (4th Cir. 2003) (citing
Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 960−61 (4th Cir. 1996)). It is the
perception of the employer, not the employee, that matters. Id. As a result, plaintiff’s own claim
of satisfactory performance is insufficient to generate a factual issue on this second element of a
prima facie case. See Morrall v. Gates, 370 Fed. App’x 396, 398 (4th Cir. 2010). In Morrall, an
African American female employee sued her former employer, the Department of Defense, for
race discrimination in connection with her termination. Id. at 398. The district court granted
summary judgment, and the Fourth Circuit affirmed. Id. The main issue on appeal was whether
the district court correctly determined that plaintiff failed to prove that she was performing her
job at a satisfactory level at the time she was terminated. Id. The Fourth Circuit reiterated that
“[w]hether an employee is performing at a level that meets legitimate expectations is based on
the employer’s perception, and [plaintiff’s] own, unsubstantiated assertions to the contrary are
insufficient to stave off summary judgment.” Id. Here, as in Morrall, plaintiff has failed to
satisfy the second element because he cannot establish a genuine issue as to whether he was
satisfactorily performing his job at the time of the adverse employment actions. Thus, plaintiff
cannot establish a prima facie case of race discrimination.
Although the inquiry could end here, the court, in light of the extensive discussion by the
parties, turns to an analysis of the fourth and final element of a prima facie case of race
discrimination, that plaintiff was treated differently from similarly situated employees outside the
protected class. At the outset, it should be noted that this issue was the subject of supplemental

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discovery and briefing by the parties. As detailed in an earlier opinion, the parties' initial
summary judgment papers did not include a discussion of comparators because defendant had
not produced discovery regarding comparators. (ECF No. 48 at 3–7).

The court ordered that

supplemental discovery regarding comparators be conducted and that supplemental briefs be
filed by the parties regarding the comparator discovery. (Id. at 8–10) Plaintiff’s supplemental
brief addressing the comparators focuses on the alleged disparate treatment between plaintiff and
the comparators as it relates to the denial of disability retirement which, as noted above, likely
does not constitute an adverse employment action.

Plaintiff does not detail any disparate

treatment between the plaintiff and the comparators as it relates to plaintiff being placed on leave
without pay and or being terminated, the two adverse employment actions at issue in this case.
Plaintiff's lack of analysis on this issue makes it both difficult to discern the nature of plaintiff's
claims and challenging to discuss the comparator evidence within the applicable legal
framework. Notwithstanding these challenges, an analysis of plaintiff's proffered comparator
evidence clearly reveals that plaintiff was not treated differently from similarly situated
employee outside the protected class.
When analyzing the fourth factor, plaintiff need not point to a similarly situated
comparator, as a matter of law, to succeed on a claim based upon discrimination. Bryant v.
Aiken Reg’l Med. Ctrs., Inc., 333 F.3d 536, 545 (4th Cir. 2003).

But when plaintiff’s

allegations, as here, are based “completely upon a comparison to an employee from a nonprotected class . . . the validity of their prima facie case depends upon whether that comparator is
indeed similarly situated.” Haywood v. Locke, 387 Fed. App’x 355, 359 (4th Cir. 2010) (citing
Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 258 (1981)). A plaintiff, therefore,
must show that he or she is similar in all relevant aspects to their comparators. See Haywood,

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387 Fed. App’x at 359 (emphasis added). This type of showing by plaintiff would “include
evidence that the employees ‘dealt with the same supervisor, [were] subject to the same
standards and . . . engaged in the same conduct without such differentiating or mitigating
circumstances that would distinguish their conduct or the employer’s treatment of them for it.’”
Id. (citing Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)); see also Humphries v.
CBOCS W., Inc., 474 F.3d 387, 405 (7th Cir. 2007) (“[T]he purpose of the similarly situated
requirement is to eliminate confounding variables, such as differing roles, performance histories,
or decision-making personnel, which helps isolate the critical independent variable: complaints
about discrimination.”), aff'd, 553 U.S. 442 (2008). Notably, “if different decision makers are
involved, employees are generally not similarly situated.” Johnson v. Baltimore City Police
Dept., Civil No. ELH-12-2519, 2014 WL 1281602, at *20 (D. Md. Mar. 27, 2014) (quoting
Forrest v. Transit Mgmt. of Charlotte, Inc., 245 Fed. App’x 255, 257 (4th Cir. 2007)).
As noted above, plaintiff fails to address race discrimination with respect to the adverse
employment actions of being placed on leave without pay and being terminated. Plaintiff briefly
mentions these actions in his Amended Complaint, but does not make any argument, or offer any
evidence, regarding race discrimination as it relates to these actions. Instead, the focus of
plaintiff’s argument is that he was treated differently from similarly situated individuals outside
the protected class as it relates to Mr. Rensted’s decision to deny plaintiff’s request for disability
retirement. Accordingly, the court will address plaintiff’s claims in this context.
In support of his claim, plaintiff alleges that there are Caucasian comparators who are
similarly situated in all relevant respects to him. (ECF No. 54 at 23–25). Plaintiff asserts these
comparators were treated more favorably than plaintiff was treated with respect to whether they
received service-connected disability retirements. Id. Plaintiff names as comparators: Officer A,

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Officer B, Officer C, and Officers D, E, and F as Caucasian officers who were granted a service-

connected a disability retirement and/or were not terminated or placed on leave without pay as a
result of their injuries. Id. A review of the specifics regarding these “comparators,” however,
clearly reveals that they are not similarly situated to plaintiff.
The first alleged comparator, Officer A, held a different position than plaintiff in that he
was a supervisor, who had been employed by defendant for 31 years. (ECF No. 51-27). Officer
A had the ability to hire and fire and was the final decision maker in disciplinary matters. (ECF
No. 51-27). Contrary to plaintiff’s claim, Officer A was not placed on permanent light duty, but
was reassigned to a different supervisory position. (ECF No. 60 at 3). Plaintiff, an Officer First
Class, was a front line police officer with no managerial duties or experience. (ECF No. 1-2).
See Trusty v. Maryland, 28 Fed. App’x 327, 329 (4th Cir. 2002) (supervisor and subordinate not
similarly situated). Thus, Officer A is not similarly situated to plaintiff.7
As to alleged comparators Officers C, D, and E, plaintiff does not address why these
officers are similarly situated to plaintiff other than noting that they were all the same rank and
discussing their medical history as it relates to the retirement disability process and result. (ECF
No. 54 at 25–26, ECF No. 55 at 2–7). The critical distinction between these officers and
plaintiff, however, is that a different Human Resources Director, not Mr. Rensted, made the
decision to grant them service-connected disability retirement. (ECF No. 55 at 2–7). Thus, these
officers are not similarly situated to plaintiff because a different decision maker was involved in
determining whether their disability applications were granted. See Forrest v. Transit Mgmt. of

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Plaintiff also asserted in his opposition brief that Officer B is similarly situated to plaintiff because they both
answered to the same supervisor, Officer A. (ECF No. 54 at 24). It appears that plaintiff has abandoned the
argument that Officer B is a comparator because plaintiff has not included Officer B in his supplemental brief.
(ECF No. 55). Presumably, that is because Officer B never filed a retirement disability application. (ECF No. 51-1
at 31).

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Charlotte, Inc., 245 Fed. App’x 255, 257 (4th Cir. 2007) (employees not similarly situated if
different decision makers involved).
On the other hand, Officer F, who plaintiff argues is similarly situated to him, had the
same HR director, Paul Rensted, make the decision regarding her service-connected disability
retirement application. (ECF No. 54 at 24). The notable distinction between Officer F and
plaintiff, however, is that the physician who conducted Officer F’s IME determined that she
could not perform the physical duties required of an officer. (ECF No. 51-44). By contrast, the
two doctors who performed plaintiff’s IMEs concluded that plaintiff could return to work. (ECF
Nos. 51-9, 51-14).8 While “the court acknowledges that a similarly-situated comparator need not
be [the] plaintiff’s exact match,” Haywood v. Gutierrez, No. 08-CV-981 (GBL), 2009 WL
1208111, at *6 (E.D. Va. Apr. 30, 2009), it cannot be said that Officer F and plaintiff are
similarly situated.

The decision whether to approve a disability application is necessarily

dependent upon the IME conclusions, and the fact that Officer F and plaintiff had different IME
results is a critical distinguishing fact. As a result, plaintiff has failed to identify a comparator
who is similarly situated to plaintiff9 and, accordingly, has failed to establish a prima facie
case.10
Even if plaintiff could establish a prima facie case of discrimination, it must also be noted
that the fact that plaintiff had two separate IMEs concluding that he could return to work, which

8

Although a third IME of plaintiff conducted by Dr. Matthews concluded plaintiff could not return to full duty
police work, this IME was completed almost five months after Mr. Rensted denied plaintiff’s application for a
service-connected disability retirement.
9

Officer G is the only other individual for whom Mr. Rensted decided a disability application. (ECF No. 51-1 at
33). Like plaintiff, Officer G is an African American male who suffered a knee injury while at work. (ECF No. 5117). The physician who conducted Officer G’s IME determined that he could not perform the physical duties
required of an officer, and Mr. Rensted subsequently approved his application for disability retirement. (ECF No.
51-47). So Officer G, like Officer F, but unlike plaintiff, had an IME supporting the conclusion that he could not
return to work.
10

As noted above, plaintiff has not identified any similarly situated comparators as it relates to his allegations of
race discrimination in the context of being placed on administrative leave without pay and being fired.

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supported Mr. Rensted’s decision, also serves as evidence of a non-discriminatory, legitimate
reason for the denial of disability benefits. Moreover, defendants have offered evidence of a
legitimate, non-discriminatory reason for its employment actions against plaintiff regarding his
status of being on leave without pay and being terminated. Regarding plaintiff’s termination,
defendants’ legitimate, non-discriminatory reason for such action was because plaintiff refused
to return to work or to communicate with his employer. (ECF No. 51-34). As discussed below
regarding plaintiff’s status as being on leave without pay, defendants did not formally decide to
place plaintiff on leave without pay as any type of disciplinary measure or independent
determination made by defendants. It was rather an administrative action taken in due course
after plaintiff refused a different job, did not return to work otherwise, and his leave benefits
were exhausted.
As the Fourth Circuit has stated “when an employer gives a legitimate, nondiscriminatory reason for discharging the plaintiff, ‘it is not our province to decide whether the
reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the
plaintiff's

termination.’” Hawkins

v.

PepsiCo,

Inc., 203

F.3d

274,

279

2000) (quoting DeJarnette v. Cornin Inc., 133 F.3d 293, 299 (4th Cir. 1998)).

(4th

Cir.

To defeat

summary judgment, “the plaintiff must show that the defendant's non-discriminatory explanation
is ‘unworthy of credence’ or offer ‘other forms of circumstantial evidence sufficiently probative’
of discrimination or retaliation.” Kess v. Municipal Employees Credit Union of Baltimore, Inc.,
319 F. Supp. 2d 637, 644 (D. Md. 2004) (citing Mereish v. Walker, 359 F.3d 330, 336 (4th Cir.
2004)). A plaintiff at the pretext stage “must present admissible evidence that is more than ‘selfserving opinions or speculation.’” Kess, 319 F. Supp. 2d at 644 (citing McCain v. Waste Mgmt.,
Inc., 115 F. Supp. 2d 568, 574 (D. Md. 2000)). Here, plaintiff has offered no evidence or

16 

argument to support the conclusion that the defendants’ proffered reasons were a pretext for
unlawful discrimination.

B. Retaliation
Counts II and IV of plaintiff’s Amended Complaint allege that the City and APD
retaliated against plaintiff by not approving his FCE request, ignoring his treating physician’s
recommendations when denying his retirement disability, placing plaintiff on leave without pay,
and terminating him, in violation of Title VII and the ADA. (ECF No. 16 at 15–16, 18–19).
Retaliation claims brought under the ADA and Title VII are both analyzed under the Title VII
standard. See A Society Without A Name v. Virginia, 655 F.3d 342, 352 (4th Cir. 2011) (citing
authority). A prima facie case of retaliation requires proof that: (1) plaintiff engaged in a
protected activity, (2) he suffered a material adverse action, and (3) a causal connection existed
between the protected activity and the adverse action. Strothers v. City of Laurel, Maryland, No.
17-1237, 2018 WL 3321317, at *5 (4th Cir. July 6, 2018).
There is no dispute that plaintiff satisfies the first two elements. As to the first element,
plaintiff filed charges with the MCCR and the EEOC which constitutes protected activity. See
Nam v. 2012, Inc., Civil No. DKC-15-1931, 2016 WL 107198 (D. Md. Jan. 11, 2016) (filing
MCCR and EEOC charges constitutes protected activity). With respect to the second element,
plaintiff was placed on leave without pay and later terminated, both of which, as defendants
concede, constitute material adverse actions for purposes of the second element. See White v.
City of Annapolis, Civil No. JFM-13-1330, 2015 WL 5009853, at *5 (D. Md. Aug. 21, 2015)
(“Actual termination . . . [is] clearly sufficiently adverse); Fink v. Richmond, Civil Action No.
DKC-2007-0714, 2009 WL 3216117 at *10–*11 (D. Md. Sept. 29, 2009) (being placed on leave

17 

without pay constitutes an adverse employment action). Thus, the relevant question is whether
plaintiff can satisfy the third element.
In order to satisfy the third element, plaintiff must prove a causal connection between his
protected activity and the adverse action. The Fourth Circuit has held that establishing a causal
relationship at the prima facie stage “is not an onerous burden.” Strothers, 2018 WL 3321317 at
*11 (citing Burgess v. Brown, 466 Fed. App’x 272, 282 (4th Cir. 2012) (“[V]ery little evidence
of a causal connection is required to establish a prima facie case of retaliation.”) The Fourth
Circuit in Strothers recently reaffirmed this point, stating that “[a]n employee may
establish prima facie causation simply by showing that (1) the employer either understood or
should have understood the employee to be engaged in protected activity and (2) the employer
took adverse action against the employee soon after becoming aware of such activity.” Strothers,
2018 WL 3321317 at *11 (emphasis in original).
In this case, plaintiff’s protected activity occurred on October 20, 201511 when he filed a
charge of employment discrimination with the MCCR and EEOC.12 (ECF No. 1-8). The City
received a copy of plaintiff’s charge on October 23, 2015, which, according to the MCCR, “shall
serve as formal notice and service.”

(ECF No. 54-29).

Given that the charge explicitly

11

Plaintiff filed his second charge with the MCCR on January 3, 2017. (ECF No. 14-2). Because plaintiff had
already been terminated when plaintiff filed his second charge, this protected activity cannot be considered for a
retaliation claim because it happened after the material adverse action. See Gibson v. Marjack Co., Inc., 718 F.
Supp. 2d 649, 655 (D. Md. 2010) (“plaintiff must prove that the protected activity preceded the adverse action”).
12

Plaintiff asserts in his Amended Complaint, but does not further elaborate in his papers, that he engaged in
protected activity under the ADA, rather than Title VII, when he requested a Functional Capacity Evaluation
(“FCE”) and when he requested a transfer to the role of detective. Though a request for reasonable accommodations
is a protected activity under the ADA for purposes of retaliation, see Haulbrook v. Michelin North America, 252
F.3d 696, 706 (4th Cir. 2001), the plaintiff has failed to offer any evidence proving such requests were made, or
when they were made, which is required at the summary judgment stage. Regarding plaintiff’s alleged request to
transfer to the role of detective, defendants argue that plaintiff has offered no proof there was an available detective
role at any point. (ECF No. 51-1 at 38). Defendants further note that the detectives must meet the same physical
requirements as those of a police officer, and plaintiff has conceded that he could not perform the duties of being a
police officer. Id. at 39; ECF No. 51-27. Nor has plaintiff has made any attempt to establish how these events were
causally related to the adverse actions taken against him, which is required to establish a prima facie case.

18 

references discrimination based on race, retaliation, and disability, it is clear that the City “either
understood or should have understood” that plaintiff was engaging in protected activity.
Strothers, 2018 WL 3321317 at *11.
In determining whether the City took adverse action against the plaintiff soon after
learning of the charge he filed, “temporal proximity is sufficient to establish a causal connection
at the prima facie stage.” Strothers, 2018 WL 3321317 at *11 (emphasis in original). In cases
“[w]here a plaintiff rests his case on temporal proximity alone, the temporal proximity must be
very close.” Penley v. McDowell County Board of Education, 876 F.3d 646, 656 (4th Cir.
2017). Here, the adverse actions taken against plaintiff were being placed on administrative
leave on November 9, 2015 and being terminated on July 1, 2016.

Plaintiff went on

administrative leave without pay on November 9, 2015, which was only twenty days after he
filed his charge with the MCCR and EEOC. The record, however, establishes that the decision
to place plaintiff on administrative leave without pay was not made after he filed his charges of
employment discrimination, but instead, had already been administratively predetermined.
As discussed above, on July 7, 2015, Chief Pristoop and Lieutenant Antal met with
plaintiff to offer him the vacant position of Police Records Specialist. (ECF No. 51-25). At that
meeting, plaintiff was advised as to his remaining annual and sick leave he could use. Id. When
plaintiff declined the offer on July 20, 2015, plaintiff was advised that the City could not
continue to employ plaintiff in a light duty capacity position, and he could use up any remaining
paid leave time or that he could go on leave without pay because the most recent injury was not
covered as a new work related injury. (ECF No. 51-26). Plaintiff asked how much leave time he
had available, which Captain Amoia provided, and then the meeting concluded. Id. Plaintiff
was on FMLA leave from July 21, 2015 to October 13, 2015. (ECF No. 51-27). Plaintiff also

19 

applied for and received short term disability payments from August 4, 2015 to November 8,
2015. (ECF No. 51-28). Plaintiff was only placed on administrative leave the following day,
November 9, 2015, because all available leave and benefits had been exhausted.

Thus,

defendants did not affirmatively decide to place plaintiff on leave without pay on November 9.
Defendants noted that the decision to cease plaintiff’s short term disability was made by
Symetra, a third party plan administrator. (ECF No. 51-8). Thus, plaintiff was placed on
administrative leave without pay as a result of his benefits clock running out, not as the result of
any affirmative measure taken, or decision made, by defendants. In essence, the date on which
plaintiff’s leave would convert from paid to unpaid leave was predetermined the day plaintiff
declined the Police Records Specialist offer. Accordingly, plaintiff has failed to offer proof of a
causal connection between his protected activity and being placed on administrative leave
without pay.
Plaintiff was terminated on July 1, 2016, eight months after he filed his charges of
employment discrimination. Plaintiff relies on the temporal proximity between these two events
to establish a causal connection between his protected activity and his termination. As the
Fourth Circuit found in Penley, “eight to nine months is too distant to raise an inference of
causation.”

Id. at 657; see also Booth v. Maryland, 337 Fed. App’x 301, 310 (4th Cir.

2009) (nine month lapse too remote to prove a causal connection alone); compare Clark County
School Dist. v. Breeden, 532 U.S. 268, 273 (2001) (two year span between protected activity and
adverse action not close enough for temporal proximity), Pascual v. Lowe’s Home Ctrs. Inc., 193
Fed. App’x 229, 233–34 (4th Cir. 2006) (three to four months not close enough for temporal
proximity), King v. Rumsfeld, 328 F.3d 145, 151 (4th Cir. 2003) (two and a half month space
between protected activity and adverse action held not close enough for temporal proximity);

20 

with Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989 (four month span close
enough for temporal proximity), Jenkins v. Gaylord Entertainment Co., 840 F. Supp. 2d 873, 881
(D. Md. 2012) (two-day span between protected activity and adverse action close enough for
temporal proximity). Here, the temporal proximity between plaintiff’s protected activity and his
termination is not close enough to establish a prima facie case of retaliation under Title VII.
Even if plaintiff had proven a prima facie case as it relates to being placed on
administrative leave without pay or being terminated, defendants have produced evidence of a
non-discriminatory, legitimate reason for said actions. See White, 2015 WL 5009853 at *4 (after
plaintiff proves prima facie case, burden shifts back to employer to provide non-discriminatory
reason for the action). As discussed above, defendants assert that they could not offer plaintiff
permanent light duty work, plaintiff refused to return to work as a police officer, and plaintiff
declined the records specialist position offered to him. (ECF No. 51-24, 51-25). Plaintiff was
only placed on administrative leave on November 9, 2015, because all available leave and
benefits had been exhausted. (ECF No. 51-27, 51-28). With respect to plaintiff’s termination,
defendants assert that plaintiff was terminated because plaintiff refused to return to work or to
communicate with his employer. (ECF No. 51-34). Because defendants have provided evidence
of non-discriminatory reasons for their actions, the burden shifts back to the plaintiff to prove
pretext. See White, 2015 WL 5009853 at *4. Again, plaintiff has failed to offer any evidence to
prove pretext. Rather, plaintiff merely asserts, without proof, that defendants’ reasons for firing
him violated their own policy, that no other employees have been subject to discipline for the
reasons identified in plaintiff’s termination letter, and that employees outside the protected class
have been treated better. (ECF No. 54 at 15). As discussed above, plaintiff has not offered any
evidence to support these conclusory allegations. As the Fourth Circuit has stated, the “mere

21 

knowledge on the part of an employer that an employee . . . has filed a discrimination charge is
not sufficient evidence of retaliation to counter substantial evidence of legitimate reasons” for
any adverse action taken by the employer. Williams, 871 F.2d at 457. Accordingly, summary
judgment is GRANTED as to Counts II and IV.
C. Disability Discrimination in Violation of ADA
Count III of plaintiff’s Amended Complaint alleges the City and APD discriminated
against him in on the basis of his disability by refusing his request for an FCE13, ignoring his
physician’s recommendations, denying his disability retirement, placing him on leave without
pay, and firing him in violation of the ADA. (ECF No. 16 at 16–18). Plaintiff also incorporates
into his disability discrimination claim a claim for failure to provide reasonable
accommodations. Plaintiff maintains that he could not return to work as a full duty police
officer, but alleges that he could have performed a similar job with reasonable accommodations,
such as being placed on permanent light duty or being placed in the position of detective.14
The ADA provides that “[n]o covered entity shall discriminate against a qualified
individual with a disability because of the disability of such individual....” 42 U.S.C. § 12112(a).
In order to establish a violation of this section, a plaintiff must prove: “(1) that [he] has a
disability, (2) that [he] is a ‘qualified individual’ for the employment in question, and (3) that
[his] employer discharged [him] or took other adverse employment action because of [his]
disability.” Lacasse v. Didlake, Inc., 712 Fed. App’x 231, 238–39 (4th Cir. 2018).

13

As previously noted, plaintiff has failed to offer any evidence proving such a request was made, or when it was
made.

14

As noted elsewhere in this opinion, there are multiple instances where there is a clear discrepancy between what
plaintiff alleges in his Amended Complaint and what he discusses in his summary judgment papers. The request to
be placed in the position of detective is an example. Plaintiff discusses it in his Amended Complaint (ECF No. 16 at
8–9) but fails to discuss it in his opposition brief. In his opposition, the only accommodation plaintiff discusses is
the request to be placed on permanent light duty. (ECF No. 54 at 25–27).

22 

Regarding the first factor, whether plaintiff has a disability for purposes of the ADA,
plaintiff argues that he “clearly has a disability based upon his limitations which included
bending, walking, climbing, kneeling, and prolonged standing.”

(ECF No. 54 at 26).

Defendants concede that plaintiff has limitations in these areas, but argue that they are not
substantially limiting enough to be considered a disability for purposes of the ADA. (ECF No.
51-1 at 36).

The ADA defines a “disability” as “a physical or mental impairment that

substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A). Plaintiff argues
that his limitations substantially limit his major life activities. (ECF No. 54 at 26). To proceed
under the “major life activities” disability prong, plaintiff must demonstrate that: (1) he has a
physical or mental impairment; (2) that implicates a major life activity; and (3) has a substantial
limitation.

Heiko v. Columbo Savings Bank, F.S.B., 434 F.3d 249, 254 (4th Cir. 2006).

Defendants concede that plaintiff has a physical impairment which affects the major life
activities of walking and bending.15 (ECF No. 51-1 at 36). Defendants maintain, however, that
plaintiff cannot meet the third requirement in that his impairment does not substantially limit his
ability to bend, walk, climb, kneel, or stand for a prolonged period of time.
In order to meet the ADA's “substantially limits” requirement, an impairment must
interfere with a major life activity “considerabl[y]” or “to a large degree” and it must be
“permanent or long-term.” Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 185
(2002). “Among the factors courts should consider in making the substantial limitation
determination are the impairment's ‘nature and severity’ and ‘expected duration.’” Heiko, 434
F.3d at 257 (quoting 29 C.F.R. § 1630.2(j)(2)(i)-(ii)). Courts must engage in an individualized

15

Major life activities include, among other things, “caring for oneself, performing manual tasks, seeing, hearing,
eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking,
communicating, and working.” § 12102(2)(A).

23 

inquiry focused on the particular plaintiff's limitations and any effects of corrective mitigation
measures. Heiko, 434 F.3d at 258.
In this case, plaintiff has been cleared to resume full duty work by two doctors who
conducted IMEs. (ECF No. 51-9, 51-14). Mr. Rensted then reviewed these IMEs, and other
medical evidence, and concluded plaintiff was not disabled for purposes of his retirement
disability application. (ECF No. 51-16). Mr. Rensted’s decision was later affirmed by the
Public Safety Disability Retirement Board. (ECF No. 51-31). Plaintiff was instructed to “avoid
squatting and kneeling when possible.” (ECF No. 51-14). Otherwise, there were no restricting
limitations placed on plaintiff’s abilities to bend, walk, climb, kneel, or stand for a prolonged
period of time. Such “mild limitations are not significantly restricting” and the Fourth Circuit
has “consistently held that similar restrictions are not evidence of a permanent impairment that
substantially limits any major life activity under the ADA.” Pollard v. High’s of Baltimore, Inc.,
281 F. 3d 462, 470–71 (4th Cir. 2002) (limitations to not lift more than 25 pounds or bend
repetitively were mild and plaintiff did not offer sufficient evidence as to impairments’
permanency that they would be substantially limiting under the ADA).
Plaintiff argues that Dr. Friedler, the second IME doctor, never concluded plaintiff could
return to full duty work. (ECF No. 54-26). Defendants, however, note that Dr. Friedler was
provided with the plaintiff’s job description and required physical capabilities when he examined
plaintiff and determined he could return to work. (ECF No. 52 at 16). Plaintiff also discusses
the results of his IME with Dr. Matthews and the diagnosis from his treating physician, Dr.
Fetcher. (ECF No. 54-26). Plaintiff notes how both doctors concluded he could not return to full
duty work and thus, required an accommodation. Id. Plaintiff, however, offers no specific
evidence to prove that his impairments are substantially limiting. Plaintiff offers no evidence on

24 

the permanence or long term aspects of his impairments or how they “considerabl[y]” or “to a
large degree” interfere with a major life activity. “Plaintiff[] cannot show that an impairment
severely restricts a major life activity simply by submitting ‘evidence of a medical diagnosis of
an impairment.’

Rather, they must offer evidence that the impairment causes substantial

limitation in terms of their own experience.” Bennett v. Kaiser Permanente, 931 F. Supp. 2d.
697, 709 (D. Md. 2013) (quoting Toyota, 534 U.S. at 198). Plaintiff fails to do that here. Thus,
plaintiff cannot satisfy the first element for a claim of disability discrimination under the ADA.
Even if plaintiff could satisfy the first element, plaintiff has not proffered any evidence of
the second element, that he is a “qualified individual” for the employment in question.
Defendants assert that plaintiff is not a “qualified individual” under the ADA because plaintiff
has acknowledged that he cannot, with or without a reasonable accommodation, perform the
essential functions of being a police officer.16 It is clear that the position of police officer is a
physically demanding job.

To that end, defendants have offered a “Position Vacancy

Announcement” which summarizes the skills and abilities required of a police officer, along with
examples of types of work performed by an officer. (ECF No. 1-2). The document includes a
section covering the ADA and lists the “physical ability” needed as follows: “[a]bility to lift
and/or move heavy objects or persons weighing from 150 to 300 pounds in the course of rescue
activities; ability to physically restrain persons in the course of law enforcement activities; ability
to give chase on foot in the course of law enforcement/criminal apprehension activities . . . .” Id.
A “qualified individual” with a disability under the ADA is someone “who, with or
without reasonable accommodation, can perform the essential functions” of the job. 42 U.S.C. §
12111(8). Essential functions are those which “bear more than a marginal relationship to the job

16

The statute requires that courts use the employer’s judgment as to what functions of a job are essential. 42 U.S.C.
§ 12111(8).

25 

at issue.” Tyndall v. National Educ. Centers, Inc. of California, 31 F.3d 209, 212 (4th Cir.
1994). Based on the IMEs which concluded that plaintiff could return to work, the APD ordered
plaintiff to return to work. (ECF No. 51-19). Plaintiff returned to work for a few hours,
reinjured his knee, and has since asserted throughout this litigation that he cannot fulfill the
physical duties of a police officer.

The record is replete with plaintiff’s own subjective

statements and beliefs that he could not fully perform these “essential functions.”

In his

Amended Complaint, plaintiff states that he could not perform the physical duties and
requirements demanded of all police officers. (ECF No. 16 at 16–17). In his application for
service based retirement disability, plaintiff stated he was “not now or in the foreseeable future
capable of returning to work as a police officer.” (ECF No. 51-12). Plaintiff reaffirmed this
statement when he testified before the panel evaluating his disability application. (ECF No. 5131). Plaintiff takes the position that his impairment is serious and should warrant his disability
retirement, while simultaneously arguing that, with some level of accommodation, he can
perform this job. These contrary positions cannot be reconciled.
As noted in Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999):
When faced with a plaintiff's previous sworn statement asserting “total disability”
or the like, the court should require an explanation of any apparent inconsistency
with the necessary elements of an ADA claim. To defeat summary judgment, that
explanation must be sufficient to warrant a reasonable juror's concluding that,
assuming the truth of, or the plaintiff's good-faith belief in, the earlier statement,
the plaintiff could nonetheless “perform the essential functions” of her job, with
or without “reasonable accommodation.”
Id. at 807. Here, plaintiff has offered no explanation for this inconsistency and, therefore, has
failed to create a factual issue sufficient to defeat summary judgment on this claim. See Dawson
v. Baltimore County, Civil No. JFM-16-692, 2016 WL 4089562 (D. Md. Aug. 1, 2016)

26 

(employee unable to perform essential functions at the time of adverse action is not a qualified
individual).17
Even if plaintiff had proven a prima facie case of disability discrimination, defendants
have produced evidence of a non-discriminatory, legitimate reason for said actions. See Jacobs
v. N.C. Administrative Office of the Courts, 780 F.3d 562, 575. As discussed above in the
context of plaintiff’s race discrimination claim, defendants have offered evidence that they could
not offer plaintiff permanent light duty work, plaintiff refused to return to work as a police
officer, and plaintiff declined the records specialist position offered to him. (ECF No. 51-24, 5125). Plaintiff was thereafter on FMLA leave from July 21–October 13, 2015 and was on short
term disability from August 4–November 8, 2015. (ECF No. 51-27, 51-28). Plaintiff was only
placed on administrative leave without pay the following day, November 9, 2015, because all
available leave and benefits had been exhausted. Id. With respect to plaintiff’s termination, the
City has offered that it terminated plaintiff because plaintiff refused to return to work or to
communicate with his employer. (ECF No. 51-34). Because defendants have provided evidence
of non-discriminatory reasons for their actions, the burden shifts back to the plaintiff to prove
pretext. See Jacobs, 780 F.3d at 575–76. Plaintiff has failed to offer any evidence to prove
pretext. As a result, his claim fails.
Finally, in his opposition, plaintiff argues that defendants failed to accommodate him
under the ADA. (ECF No. 54 at 26–29). Plaintiff alleges that although he could not return as a
full duty police officer, defendants should have accommodated his disability by placing him on
modified or light duty. Id. at 27. Plaintiff has not offered any evidence that any such position
existed. “An employer is not obligated to provide an employee the accommodation he or she

17

Nor has plaintiff offered any evidence to prove the third element of a prima facie case, that defendants took
adverse employment actions against plaintiff because of his disability.

27 

requests or prefers; the employer need only provide some reasonable accommodation.”
Crawford v. Union Carbide Corp., No. 98-2448, 1999 WL 1142346 at *8 (4th Cir. 1999). Here,
defendants have noted that there is no permanent light duty position. (ECF No. 52 at 14). And
in any event, permanent light duty is not a reasonable accommodation. Searls v. Johns Hopkins
Hospital, 158 F. Supp. 3d 427, 436 (“a reasonable accommodation does not require an employee
to…assign an employee permanent light duty.”) (D. Md. 2016) (quoting Crabill v. Charlotte
Mecklenburg Bd. of Educ., 423 Fed. App’x 314 (4th Cir. 2011)).18 Contrary to plaintiff’s
assertions, defendants provided plaintiff with many accommodations to include providing him
with sixteen months of light duty work, keeping his position open for over two years while he
was on light duty and on leave, providing him with various forms of leave, and offering plaintiff
the position of Police Records Specialist. (ECF No. 51-1 at 40–42). For the foregoing reasons,
summary judgment is granted as to Count III.

D. Section 1981 and 1983 Race Discrimination
Counts V, VI, and VII of plaintiff’s Amended Complaint allege discrimination in
violation of 42 U.S.C. §§ 1981 and 1983 against the City, APD, and Chief Pristoop in his
individual capacity. (ECF No. 16 at 19–22). Section 1981 provides that “[a]ll persons within the
jurisdiction of the United States shall have the same right . . . to make and enforce contracts . . .
as is enjoyed by white citizens . . . .” 42 U.S.C. § 1981(a). This section prohibits employment
discrimination on the basis of race. See Weathersbee v. Baltimore City Fire Dept., 970 F. Supp.

18
 Plaintiff asserts in his Amended Complaint, but does not discuss in his papers, that defendants refused to reassign
plaintiff to a detective position. (ECF No. 16 at 17). As noted by defendants, however, there is no evidence that
there was an available detective position at any point. (ECF No. 51 at 38; ECF No. 51-27). Defendants further note
that detectives must satisfy the same physical requirements as those of a police officer, and the same requirements
plaintiff has conceded that he could not perform. Id. at 39; ECF No. 51-27.

28 

2d 418 (D. Md. 2013). Though the claim is brought under § 1981, it is clear that “when suit is
brought against a state actor, § 1983 is the ‘exclusive federal remedy for violation of the rights
guaranteed in § 1981.’” Dennis v. Cnty. of Fairfax, 55 F.3d 151, 156 (4th Cir. 1995) (quoting Jett
v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733 (1989)).
When the party sued for discrimination under § 1983 is a municipality, such as the City
of Annapolis19, the municipality may be liable “where a policymaker officially promulgates or
sanctions an unconstitutional law, or where the municipality is deliberately indifferent to the
development of an unconstitutional custom.” Smith v. Ray, 409 Fed. App’x 641, 650 (4th Cir.
2011). Further, a municipality is not liable for mere “isolated incidents of unconstitutional
conduct by subordinate employees.... Rather, there must be numerous particular instances of
unconstitutional conduct in order to establish a custom or practice.” Lytle v. Doyle, 326 F.3d
463, 473 (4th Cir. 2003).
Here, plaintiff maintains that the City has a “clear custom of treating white officers more
favorably than black officers. The procedures used for imposing discipline, determining
qualifications for disability retirement . . . shows a clear pattern of discriminatory treatment in
favor of white officers.” (ECF No. 54 at 16). Similarly, in plaintiff’s Amended Complaint, he
states “[d]efendants have a custom or policy of engaging in discrimination against African
Americans.” (ECF No. 16 at 21). Plaintiff offers no factual or evidentiary basis to prove that
such a policy or custom exists. Even if Plaintiff had offered such evidence, the theory of
municipal liability under § 1983 requires “numerous particular instances of unconstitutional
conduct in order to establish a custom or practice.” Lytle, 326 F.3d at 473.

In the absence of

19

The City of Annapolis, as a unit of local government, is a person subject to suit under § 1983. Sparrow v. City of
Annapolis, Civil No. WMN-16-1394, 2017 WL 3413596 (D. Md. Aug. 9, 2017) (excessive force and battery claims
brought against City of Annapolis). Defendants appear to acknowledge that the APD is also subject to this suit and
note that “[p]ursuant to the City charter, the [APD] is duly constituted police agency that operates within the City.”
(ECF No. 51-1 at 2).

29 

such evidence, summary judgment must be granted as to Counts V and VI against the City and
APD.
Count VII alleges discrimination in violation of § 1983 against Chief Michael Pristoop in
his individual capacity only. Plaintiff states that Chief Pristoop “terminated [plaintiff] without
any policy based authority to do so.” (ECF No. 54 at 16). The termination, according to plaintiff,
violated plaintiff’s right to challenge disciplinary actions under the Law Enforcement Officer’s
Bill of Rights (“LEOBR”). Id. Plaintiff also generally alleges, without further discussion, the
chief’s involvement in the decision to deny plaintiff’s FCE request, deny his retirement disability
application, place him on leave without pay, and terminate him as proof of the chief’s individual
involvement in the discrimination against plaintiff. Id.
“While individual liability for supervisors exists under [ ] §1981 and [ ] §1983, it only
applies where the act or omission resulting in the infringement of rights was intentionally caused
by the supervisor and where the Plaintiff makes an affirmative showing of that fact.” Brown v.
Baltimore Police Dept., Civil No. RDB-11-136, 2011 WL 6415366, at *7 (D. Md. Dec. 21,
2011). For the reasons noted elsewhere in this opinion, plaintiff has not presented any evidence
that Chief Pristoop or, for that matter, any other employee of the City or APD engaged in any
intentional acts which infringed upon plaintiff’s constitutional rights. Plaintiff’s reliance on the
LEOBR is misplaced because officers are not entitled to a hearing under the LEOBR when they
are terminated for poor work performance. See Cancelose v. City of Greenbelt, 75 Md. App.
661, 666−67 (1988) (officer was not entitled to LEOBR hearing in connection with dismissal for
unsatisfactory work performance, which did not result from investigation or interrogation).
Accordingly, plaintiff has not articulated a basis for Chief Pristoop’s liability under Section
1983. Therefore, Defendants’ Motion is GRANTED as to Count VII.

30 

IV.

CONCLUSION
For the foregoing reasons, Defendants’ Motion (ECF No. 51) is GRANTED. A separate

order will be issued.

Date: September 4, 2018

__________/s/____________________
Beth P. Gesner
Chief United States Magistrate Judge

31