Tonin v. Baltimore City Police Department
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 11/17/2020. (sat, Chambers)
Case 1:19-cv-00323-DKC Document 29 Filed 11/17/20 Page 1 of 29
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Civil Action No. DKC 19-0323
BALTIMORE CITY POLICE DEPARTMENT
Presently pending and ready for resolution in this employment
discrimination suit are a motion to dismiss for failure to state
a claim, (ECF No. 24), and a motion for leave to file opposition
to Defendant’s motion to dismiss out of time.
(ECF No. 27).
issues have been briefed, and the court now rules, no hearing being
Local Rule 105.6.
For the following reasons,
Plaintiff’s motion for leave to file her response will be granted,
and Defendant’s motion to dismiss will be granted in part and
denied in part.
Unless otherwise noted, the facts outlined here are set forth
in the amended complaint and construed in the light most favorable
Plaintiff Eva Tonin (“Ms. Tonin”) is a resident of
Washington, D.C., and, until recently, was employed by Defendant
the Baltimore City Police Department (“BPD”).
on August 29, 2010, as a Police Officer.
Ms. Tonin was hired
She alleges that her
Case 1:19-cv-00323-DKC Document 29 Filed 11/17/20 Page 2 of 29
performance was “always satisfactory,” and she was eventually
assigned to Defendant’s Southwest District in 2013.
It is there
that her supervisor John Ferinde, she claims, first “subjected her
to discriminatory harassment based on her sex, national origin,
and retaliation after she reported and complained about him.”
The mistreatment came to a head after Plaintiff returned to
work on March 2016 following a “work-related car accident” that
left her with limited ability to “walk, stand, and bend.”
point thereafter, Sgt. Ferinde’s alleged “constant discrimination
and harassment” caused Plaintiff to suffer from “extreme stress,
anxiety and depression.”
A series of incidents followed where
Plaintiff was increasingly denied the reasonable accommodations
she felt she needed for her latter mental conditions, particularly
no direct contact with prisoners.
She also was subjected to a
series of reprimands and transfers that she felt were retaliatory
in nature due to her EEOC complaints in 2016, 2018 and 2019, as
well as her continued requests, in some instances, to secure
accommodations she had previously been offered.
This background is well laid out in the previous opinion
partially dismissing the original complaint and granting Plaintiff
leave to amend.
(ECF No. 21); Tonin v. Balt. City Police Dept.,
No. DKC 19-0323, 2020 WL 3259083, at *1-11 (D.Md. June 15, 2020).
Case 1:19-cv-00323-DKC Document 29 Filed 11/17/20 Page 3 of 29
unchanged from those in the original complaint. (Compare ECF No.1,
with ECF No. 23).1
The original complaint, filed on February 3, 2019, brought
five claims against the BPD under Title VII, 42 U.S.C. §§ 2000e et
seq (“Title IV”) for discrimination based on sex and national
origin, retaliation, hostile work environment and retaliatory
hostile work environment (Counts I-V), and four claims under the
Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq (“the
On October 7, 2019, the BPD filed a motion to dismiss for
failure to state a claim.
It first argued that the 2016 EEOC
complaint by Plaintiff was not properly before the court and that
only the conduct occurring within 300 days of the 2018 EEOC
complaint filed on March 19, 2018, were not time-barred.
challenged Counts I-V for their failure factually to support
Plaintiff’s discrimination claims under Fed.R.Civ.P. 12(b)(6).
(ECF No. 11).
Plaintiff’s 2016 EEOC complaint could be included as background
only (except possibly as they related to a claim of hostile work
environment), that only those claims occurring after May 23, 2017,
were not time-barred, and that an amended complaint that added
facts after the initial filing of the 2019 EEOC claim would be
The analysis below highlights where added facts are relevant
to one of the five Counts contained in the amended complaint.
Case 1:19-cv-00323-DKC Document 29 Filed 11/17/20 Page 4 of 29
Counts I-V were dismissed with leave to
amend, but Plaintiff’s claims under the ADA, Counts VI-IX, survived
as unchallenged on Fed.R.Civ.P. 12(b)(6) grounds.
Tonin, 2020 WL
3259083 at *6-*9.
Plaintiff filed an amended complaint on July 7, 2020.
Defendant moved to dismiss the amended complaint on July
(ECF No. 24).
On August 10, the day before Plaintiff’s
opposition was due, the parties filed a consent motion requesting
an extension of time to file their respective opposition and reply,
(ECF No. 25), which the court denied by paperless order.
Despite this denial, Plaintiff did not respond immediately
to the motion to dismiss.
Instead, more than seven weeks later,
on October 2, 2020, she filed a motion for leave to file a response
(ECF No. 27).
Despite its earlier consent to the
Plaintiff’s motion to file a response out of time.
(ECF No. 28).
Motion for Leave to File Opposition
In defending her filing more than seven weeks after the
opposition deadline and the denial of the parties’ consent motion
for an extension, Plaintiff’s counsel points to numerous causes of
Some of these predate the previous ruling on the consent
motion, such as a “family matter” and her child’s birthday party
she attended to on the week of August 3, 2020, as well as deadlines
Case 1:19-cv-00323-DKC Document 29 Filed 11/17/20 Page 5 of 29
in “administrative matters,” and a case conference scheduled on
August 6, 2020.
Counsel explains how various crises occurred at
work right around the time of the deadline for an opposition and
The day before the consent motion was filed, for
instance, a “Senior Counsel” in her firm went on leave because her
spouse tested positive for Covid-19, requiring her colleague’s
family to quarantine.
Her colleague’s absence left no one to help
her “perform work or supervise Associate Attorneys.”
states that she was required to cover for some of the matters with
which this colleague was involved.
Plaintiff’s counsel points to
an August 12 email to Defendant’s counsel detailing her various
work and personal responsibilities and asking for his consent to
the extension, to which he agreed.
(ECF No. 27-4).
The next day,
however, a “cybercrime incident” occurred involving a client’s
money, and Plaintiff’s counsel was tasked with working on notices
to clients and government officials.
Because of a security breach
caused Plaintiff’s counsel further delays by limiting her and other
colleagues’ access to her computer and platforms.
September, on the other hand, do not revolve around discrete
emergencies but report several hearing and filing deadlines for
other clients and challenges for her at home amid the realities of
the COVID pandemic. Plaintiff’s counsel also reports that starting
Case 1:19-cv-00323-DKC Document 29 Filed 11/17/20 Page 6 of 29
Associate Attorney. All of this, she argues, presents “good cause”
and “excusable neglect” that merits granting her an extension under
Fed.R.Civ.P.6(b)(1)(A) and (B).
Pointing to the standard for pre-
trial schedule modifications, Plaintiff adds these events also
satisfy the definition of “good cause” pursuant to Fed.R.Civ.P.
The BPD comments that “Defendant’s counsel is sympathetic to
They are representative of the kind of struggles
that all attorneys face from time to time.”
This, the BPD
additional time to file an Opposition, even though Plaintiff has
had years to plead her case properly.”
It argues that, at this
juncture, however, “these commonplace struggles do not excuse
ignoring a Court Order and failing to inform the Court of the
status of the Opposition until seven weeks after it was due.”2
this reason, the BPD says it did not consent to the October 1
request to file out of time and asks the court not to consider the
Regardless of the merits of the initial request to extend the
filing deadline, counsel cannot simply ignore the fact that the
The Defendant correctly points out that even if the court
had granted the consent motion to extend, Plaintiff’s submission
would still have been a few days late. (ECF No. 28, ¶ 12).
Case 1:19-cv-00323-DKC Document 29 Filed 11/17/20 Page 7 of 29
request was denied and do nothing for nearly two months.
cases in which leave was granted have generally involved much less
See, e.g., Afzal v. Aslam, No. WMN-11-395, 2011 WL 2457682
at *1 n.1 (D.Md. June 15, 2011) (granting a plaintiff’s motion for
leave to file opposition citing a four-day delay in filing due to
CM/ECF “Accessibility Problems”).
Moreover, other cases have
rejected a delay of this length when a technical issue occurring
firm-wide is cited.
See, e.g., Johnson v. Nat’l R.R. Passenger
Corp., No. 07-1806, 2008 WL 11396762 at *2 (D.D.C. April 1, 2008)
defendant’s motion to dismiss [until nearly a month after the
Nevertheless, as Judge Bennett has stressed, the standard
under Fed.R.Civ.P. 6(b) is a “discretionary” and “equitable one,
and hinges on the characteristics of the delay and the movant’s
Lee v. Safeway, Inc., No. RDB-13-3476, 2014 WL
4926183 at *3 (D.Md. Sep. 30, 2014) (citing Lujan v. Nat’l Wildlife
Fed., 497 U.S. 871, 895 (1990) and Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)).
confluence of outside events affecting Plaintiff’s counsel and her
firm constitutes good cause for an extension under Fed.R.Civ.P.
The prejudice to Defendant from the delay would be de
Case 1:19-cv-00323-DKC Document 29 Filed 11/17/20 Page 8 of 29
minimis (the merits of its motion will be reached either way), and
there is no reason to doubt the particular challenges faced by
Plaintiff’s counsel in light of the “cybercrime incident” at her
firm and other COVID related challenges as they impacted her
professional and personal life.
The motion for leave to file
opposition will be considered.
Motion to Dismiss
Standard of Review
A motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the
sufficiency of the complaint.
Presley v. City of Charlottesville,
464 F.3d 480, 483 (4th Cir. 2006).
A plaintiff’s complaint need
only satisfy the standard of Fed.R.Civ.P. 8(a), which requires a
“short and plain statement of the claim showing that the pleader
is entitled to relief.”
At this stage, all
well-pleaded allegations in a complaint must be considered as true,
Albright v. Oliver, 510 U.S. 266, 268 (1994), and all factual
allegations must be construed in the light most favorable to the
plaintiff, see Harrison v. Westinghouse Savannah River Co., 176
F.3d 776, 783 (4th Cir. 1999) (citing Mylan Labs., Inc. v. Matkari,
7 F.3d 1130, 1134 (4th Cir. 1993)).
“Rule 8(a) (2) still requires
a ‘showing,’ rather than a blanket assertion, of entitlement to
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 n. 3
Case 1:19-cv-00323-DKC Document 29 Filed 11/17/20 Page 9 of 29
In evaluating the complaint, unsupported legal allegations
need not be accepted.
Revene v. Charles Cty. Comm’rs, 882 F.2d
870, 873 (4th Cir. 1989).
Legal conclusions couched as factual
allegations are insufficient, Ashcroft v. Iqbal, 556 U.S. 662, 678
reference to actual events.
United Black Firefighters of Norfolk
v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979); see also Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).
“[W]here the well-
pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged - but it has
not ‘show[n]’ – ‘that the pleader is entitled to relief.’”
“[d]etermining whether a complaint states a plausible claim for
relief will . . . be a context-specific task that requires the
reviewing court to draw on its judicial experience and common
Title VII Retaliation
The BPD argues that Ms. Tonin’s amended complaint fails for
many of the same reasons Counts I-V were dismissed in the original
The Title VII retaliation claim in Count I, it argues,
is a “repackaging of Count III” in the previous complaint that
fails to state any “adverse employment action” taken by Defendant
against Plaintiff in connection with “any protected activity that
Case 1:19-cv-00323-DKC Document 29 Filed 11/17/20 Page 10 of 29
Plaintiff alleges that she “filed EEOC Complaints [that]
Defendant, learning of these complaints, to “subject her to
unfounded complaints, investigations, and discipline.”
23, ¶¶ 163-64).
This Count, as with the others, incorporates the
generalized allegations preceding it.
Many of these allegations
recount conduct predating May 23, 2017, and thus, as explained,
are untimely as to Plaintiff’s retaliation claims, except that
Tonin, 2020 WL 3259083, at *6 (explaining that Maryland, as a
deferral state, has a 300-day limitations period running back from
the 2018 EEOC complaint thus time barring all related allegations,
except for hostile work environment, occurring before this date).3
The entire complaint, unfortunately, is not drafted in an
Instead of linking any actions to any of
the causes of action, Plaintiff merely outlines the entire course
of conduct and then labels it retaliation. While Defendant asserts
that none of the actions were sufficiently “adverse” to constitute
retaliation, it primarily argues that Plaintiff has not alleged
Her 2016 EEOC Complaint is relevant as a protected activity
of which her employer undoubtedly was aware by May 24, 2017. See
Karpel v. Inova Health System Servs., 134 F3d 1222, 1229 (4th Cir.
1998) (“She clearly engaged in protected activity when she filed
her EEOC complaint.”).
Case 1:19-cv-00323-DKC Document 29 Filed 11/17/20 Page 11 of 29
facts showing any causal link between her protected activity and
any adverse action.
The amended complaint seeks to tie, among other things,
transfers to what Plaintiff contends are less desirable posts, a
“reasonable accommodation” requests to avoid all prisoner contact,
and an “Intervention” meeting held seemingly to put Ms. Tonin on
notice of poor performance, as retaliatory conduct by the BPD that
links back to her 2016 EEOC Complaint.
At the same time, however,
she also seeks to tie this same conduct to the requests for
For example, she details how on May 24,
“Administrative Sgt. For Southwest District,” and a Lt. Saunders
requesting reassignment as per her therapist’s recommendation.
Instead, she was told her injury in a work-related car accident in
2016 was not found to be in the “line of duty” and her request was
Sgt. Hunter subsequently agreed to meet with her to
discuss the decision but did not show up at the planned meeting.
Shortly, thereafter, Lt. Saunders informed her that she had been
“assigned to work the front desk for the Southwest District.”
Tonin implies that this constituted a form of retaliation for all
her past requests and complaints as she reports having a “severe
panic attack” in getting word of her assignment; a Lt. Colburn
Case 1:19-cv-00323-DKC Document 29 Filed 11/17/20 Page 12 of 29
ultimately “[re-]assigned her to the Eastern District for that
(ECF No. 23, ¶¶ 56-60).
Defendant claims that none of these allegations address the
central complaint in the previous opinion as to the deficiencies
of what was labeled “Count III” in the original complaint:
Count III raises a retaliation claim.
establish a prima facie case of retaliation,
a plaintiff must present facts that establish
that (1) the plaintiff engaged in a protected
activity; [(2)] the employer took an adverse
employment action against the plaintiff; and
(3) ‘there was a causal link between the two
events.’ ” Chang Lim, 310 F.Supp.3d at 603
th Cir. 2015)).
Corp., 786 F.3d 264, 281 (4
Plaintiff summarily concludes that “Defendant
subjected [her] to unlawful retaliation” but
does not identify the adverse employment
action she challenges or connect it to any
protected activity that she took. (ECF No. 1,
Tonin, 2020 WL 3259083 at *8.
Defendant stresses that Plaintiff
again fails to show causation between protected activity and its
conduct and to show “materially adverse employment actions.”
No. 24-1, at 8).
Even if the conduct in the amended complaint
relatively lower standard for retaliation (compared to what is
establish a plausible causal link between such episodes and either
her 2016 or 2018 EEOC complaints.
Ms. Tonin points to a multitude
of actions taken by apparent supervisors with no clear explanation
Case 1:19-cv-00323-DKC Document 29 Filed 11/17/20 Page 13 of 29
of that individual’s position relative to Plaintiff or Defendant.
apparently aimed, alleges discrimination on the basis of national
Ferinde’s “discipline and harassment in violation of Title VII”
(ECF No. 11-4, at 1).
Yet, as Defendant point out,
with these underlying discrimination claims now dismissed, she has
shifted to claiming Defendant’s conduct, acting through various
harassment and was retaliation against this complaint itself.
Defendant is right to object this “kitchen sink” approach.
(ECF 24-1, at 10).
Treating a similar set of claims in a
Fed.R.Civ.P. 12(b)(6) motion, Judge Hollander has explained that,
“[t]o allege the requisite causation under Title VII, the plaintiff
must plead that the retaliation ‘would not have occurred in the
Brown v. Bratton, No.: ELH-19-1450, 2020 WL 886142,
at *20 (quoting Univ. of Tex. Sw. Med. Ctr. V. Nassar, 570 U.S.
338 360 (2013)) (“Defendants have moved to dismiss all fifteen
counts of the Complaint, which they aptly characterize as a
‘kitchen sink’ pleading.”).
To accomplish this, “there must exist
Id. (quoting Constantine v. Rectors & Visitors of
George Mason Univ., 411 F.3d 474, 501 (4th Cir. 2005)).
Case 1:19-cv-00323-DKC Document 29 Filed 11/17/20 Page 14 of 29
plaintiff complained of termination, the quintessential adverse
action, and yet the court commented “[a] period of almost two years
between the protected conduct and the termination is far too remote
to raise an inference of causation between the filing of the EEOC
Charge and the termination.” Id. (quoting Hooven-Lewis v. Caldera,
249 F.3d 259, 278 (4th Cir. 2001)).
This court has also stressed
that, “[w]here temporal proximity is the only evidence of causation
. . . ‘the temporal proximity must be very close.”
Strayer Univ., 956 F.Supp.2d 658 (D.Md. 2013) (quoting Clark Cty.
Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)).
Here, Plaintiff argues that a course of conduct by Sgt.
discrimination have been dismissed, also retaliatory.
supervisors and occurring over seven years, can all be imputed to
In fact, she now alleges it culminated with
connection between her 2016 and 2018 EEOC complaints and any of
the generally alleged conduct.
This course of conduct, moreover,
is simply too attenuated in time from her original EEOC complaint
plausibly to argue that it was its motivating factor, particularly
when Plaintiff formerly alleged it was also motivated by her
Case 1:19-cv-00323-DKC Document 29 Filed 11/17/20 Page 15 of 29
Moreover, her termination need not be considered,
both because Plaintiff tells the court not to, but also because
she fails to establish a connection to it and any of Plaintiff’s
Ultimately, there are no plausible allegations of a
concerted plan to punish Ms. Tonin for her complaints by the BPD.
As uncomfortable as these encounters with Sgt. Ferinde and others
may have been, nothing in the amended complaint connects the
complaints to the EEOC.
Count I will be dismissed.
The ADA Claims
The BPD argues that the other counts in the amended complaint,
all related to her disability, also fail because BPD’s failure
condition” “ad infinitum” does not constitute discrimination.
asserts that a failure to accommodate a person exactly how she
wants forever does not constitute discrimination or a failure to
accommodate under 42 U.S.C. §§ 12101 et seq. for Counts II and
As to the ADA retaliation and hostile work
environment claims (Counts IV and V), it argues that Plaintiff has
failed to “point to any adverse employment actions against her.”
Except for the factual enhancements to numerous portions of
the general allegations, the remaining allegations specific to
Counts II-V are verbatim the same (except changed headers and minor
Case 1:19-cv-00323-DKC Document 29 Filed 11/17/20 Page 16 of 29
typographical corrections) as Counts VI-IX found to survive as
unopposed under Fed.R.Civ.P. 12(b) in the previous opinion and
prior to granting Plaintiff leave to amend the others.
2020 WL 3259083 at *9.
Nonetheless, Defendant challenges these
claims now, although little of the underlying and relevant conduct
has changed between the original and amended complaint.
Count IV (as with Count VIII in the original complaint)
reasonable accommodations for her disability.” (ECF No. 23, ¶ 175178).
Unlike with the Title VII retaliation, Defendant only
attacks the ADA Hostile Work Environment claim, and not the ADA
Retaliation claim, on causation grounds.
Instead, it doubles down
on its argument that it has subjected Plaintiff to no materially
adverse actions that would constitute retaliation.
In doing so,
however, Defendant distorts the relevant standard.
that reassignment alone cannot constitute an adverse action but
cites to a case where the sole claim of both discrimination and
retaliation was a single reassignment.
(ECF No. 24-1, at 12)
(citing Boone v. Goldin, 178 F.3d 253, 255 (4th Cir. 1999)).
case itself centrally relied on Page v. Bolger, 645 F.2d 227 (4th
Cir. 1981), to which Defendant also cites, but Page involved only
discrimination claims and no retaliation allegations at all. (Id.)
Case 1:19-cv-00323-DKC Document 29 Filed 11/17/20 Page 17 of 29
(citing Page, 645 F.2d at 233) (explaining how the test for adverse
Defendant has conflated the standard for an adverse action
The Fourth Circuit has explained that Title VII
retaliation standards apply equally to ADA retaliation claims.
S.B. ex rel. A.L. v. Bd. Of Educ. Of Harford Cty., 819 F.3d 69, 78
(4th Cir. 2016) (citing Rhoads v. F.D.I.C., 257 F.3d 373, 391 (4th
Cir. 2001)); see 29 U.S.C § 12203.
A “materially adverse,” action
in the retaliation context is one that “well might” be enough “to
dissuade a reasonable worker from making or supporting a charge
of discrimination.” S.B. ex rel, 819 F.3d at 78 (citing Burlington
N. & Santa Fe R&R Co., 548 U.S. 53, 54, 68 (2006)).
Plaintiff alleges that the same conduct aimed at her by the
BPD for reporting claims to the EEOC under Title VII was equally
aimed at her for repeatedly requesting “reasonable accommodations”
to avoid contact with prisoners due to her depression and anxiety.
(See, e.g., ECF No. 23, ¶¶ 56-61).
For example, the amended
complaint, as with the original, highlights how, on April 24, 2018,
pursuant to Department Policy 1737.”
Nevertheless, upon emailing
the address provided by this policy, her email bounced back, and
her phone calls rang unanswered and with no option to leave a
Case 1:19-cv-00323-DKC Document 29 Filed 11/17/20 Page 18 of 29
Shortly thereafter, on May 13, 2018, Plaintiff was
told by a Lt. Lundy that she would be assigned to Central Booking
Intake Facility (“CBIF”).
In her amended complaint, Plaintiff
adds new details on how dangerous and triggering to someone with
her condition CBIF can be with poor supervision of prisoners and
with a high likelihood of encountering prisoners in passing.
also contends it is “less desirable” as a post with poor lighting
colleagues with the “same restrictions” as she were allowed to
(ECF No. 23, ¶¶ 130-141).
A reasonable worker in Plaintiff’s shoes well might have been
dissuaded by this kind of transfer, and the other demands made of
Ms. Tonin,4 from continuing to pursue reasonable accommodations
for her condition.
This is particularly true given that almost
all the instances of alleged retaliation occurred close in time to
one of Plaintiff’s accommodation requests.
Defendant quotes from
Williams v. Va. Polytechnic Inst. & State Univ., 451 F.Supp.3d
retaliation claim, but this case was decided on summary judgment,
and not on a motion to dismiss.
Moreover, the ADA retaliation
For example, Plaintiff also adds new details around how
interviews and supplemental information was demanded of her for
internal investigations that were held open for years, even after
one initiated by Sgt. Ferinde was found to be “unfounded.” (ECF
No. 23, ¶¶ 81-82, 87, 115).
Case 1:19-cv-00323-DKC Document 29 Filed 11/17/20 Page 19 of 29
claims survived there because, “[t]he short time period between
her last accommodation request and the adverse action give rise to
a causal inference.”
Id. at 479.5
The motion to dismiss as it
relates to Count IV will be denied.
Discrimination and Failure to Accommodate
Ms. Tonin alleges under Count II that the BPD “subjected [her]
to unlawful discrimination based on her disability in violation of
the ADA,” and in Count III that it similarly “subjected [her] to
unlawful discrimination based on her disability by its failure to
engage in an interactive dialogue with [her] regarding reasonable
accommodations . . . in violation of the ADA.”
(ECF No. 23, ¶¶
It is unclear what separate discrimination, if any, Plaintiff
is asserting, outside of the failure to accommodate.
Hollander has written:
To plead a claim for failure to accommodate,
an employee must allege facts that show; (1)
she was an individual with a
within the meaning of the ADA; (2) the
employer had notice of her disability; (3)
with reasonable accommodation, she could
perform the essential functions of the
position; and (4) the employer refused to make
Such a lack of temporal attenuation on this claim may be
why Defendant does not challenge causation here.
Case 1:19-cv-00323-DKC Document 29 Filed 11/17/20 Page 20 of 29
Chappel v. Balt. Cty. Pub. Schs., No. ELH-18-3328, 2019 WL 1746697
at *5 (D.Md. April 17, 2019) (quoting Rhoads v. FDIC, 257 F.3d
373, 387 n.11 (4th Cir. 2001)). The fact that there is no reference
to discriminatory intent in this rule is not an accident.
the Act “a plaintiff need not show that the employer . . . acted
accommodation’ alone is discrimination.”
EEOC v. Mfrs. & Traders
Tr. Co., 429 F.Supp.3d 89, 106 (D.Md. 2019) (citing Bryant v.
Better Bus. Bureau of Greater Md., Inc., 923 F.Supp. 720, 742
Defendant’s motion does not clarify things except
to attack both Counts on the same grounds: that the ADA only
requires reasonable accommodation not the accommodation preferred
Plaintiff was subject to “unlawful discrimination” because she had
anxiety and depression, but without factual support to determine
a separate cause of action beyond a failure to accommodate, these
two counts will be treated as one and the same.6
Plaintiff’s opposition fails to distinguish Count II from
Count III, even with elaboration. She reiterates only that the
ADA prohibits “‘employment discrimination’ against a qualified
individual on the basis of disability in regard [sic]. . .
advancement, or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of
employment.” (ECF No. 27-6, at 8) (citing Scott v. Lori, No. ELH19-2014 U.S. Dist. LEXIS 119750, at *3 (D.Md. July 8, 2020)). She
goes on to detail that the Amended Complaint alleges that she
suffers both from physical disabilities (“hip impairment limited
her ability to walk, stand, and bend”), and mental disabilities
Case 1:19-cv-00323-DKC Document 29 Filed 11/17/20 Page 21 of 29
Defendant argues, as a threshold matter, that Plaintiff’s
claim is “confusing” because, on the one hand, she admits that she
was, in fact, properly accommodated for a period, but on the other
hand, complains that she was not accommodated properly otherwise.
Unfortunately for Defendant, offering a reasonable accommodation
at one period does not insulate an employer from a challenge at
In fact, Plaintiff openly remarks that she was
properly accommodated in the period prior to her transfer to CBIF
and able to do her job fully.
Her allegation in Count III makes
specific reference to Defendant’s alleged “revoking reasonable
accommodation” that comes “and/or” with its failure affirmatively
to provide such accommodations.
Her opposition highlights that,
as per the amended complaint and starting on April 4, 2018, “Lt.
Carter revoked her reasonable accommodations and directed her to
perform fingerprinting duties which required direct contact with
accommodations, since April 11, 2018, Plaintiff has not been
(“extreme stress, anxiety, and depression that caused confusion,
inability to concentrate, difficulty sleeping, and disturbance in
appetite”); that Defendant knew about the conditions; and that she
was, nonetheless, “at all times capable of performing all essential
functions of her job position with reasonable accommodations.”
Thus, she effectively only argues that she was “otherwise
qualified” under the failure to accommodate standard.
Case 1:19-cv-00323-DKC Document 29 Filed 11/17/20 Page 22 of 29
Nonetheless, Defendant’s central argument is that the amended
complaint is defective as “Plaintiff believes that she is entitled
to serve in perpetuity as a police officer without having to do
anything remotely close to police work.
More fundamentally . . .
Plaintiff believes she is entitled to whatever accommodation she
wants, for the duration of her employment.”
(ECF No. 24-1, at 11)
(citing Fleetwood v. Harford Sys. Inc., 380 F.Supp. 2d 688, 700
(D.Md. 2005) (rejecting Plaintiff’s request for “permanent help
from a colleague” as an unreasonable accommodation in requiring
Really, Defendant’s argument boils down to alleging that the
therefore does not have to honor it.
Plaintiff counters in her
opposition that her contact with prisoners was found by an expert,
symptoms and delay recovery.” (ECF No. 27-6, at 11) (citing ECF
No. 23, ¶¶ 101-02).
This implies that these accommodations need
not be permanent as she works towards recovery.
accommodations, Defendant, argues “Plaintiff is not entitled to an
accommodation of her choosing.”
(ECF No. 24-1, at 9).
accommodations it provided were reasonable, even if Ms. Tonin’s
requests were not.
Case 1:19-cv-00323-DKC Document 29 Filed 11/17/20 Page 23 of 29
More importantly, Defendant’s argument is premature as it
goes to the merits of what form of accommodation is reasonable in
light of Ms. Tonin’s diagnosis.
Such analysis is inappropriate at
this stage. To this point, the case cited by Defendant was decided
on a motion for summary judgment.
See Fleetwood, 380 F.Supp.2d at
Seen in the light most favorable to Plaintiff, her request
for no prisoner contact is reasonable, particularly as it was
honored for almost a year.
(See ECF No. 23, ¶ 68).
stopped honoring that request.
Plaintiff plausibly states she
could have performed the essential functions of her job had the
BPD instead properly attended to her condition in some fashion.
While Count II will be dismissed as duplicitous, Ms. Tonin has
plausibly stated a claim for a failure to accommodate. Defendant’s
motion to dismiss Count II will be granted, but its motion to
dismiss Count III will be denied.
Hostile Work Environment
As correctly implied in Defendant’s motion to dismiss, much
of the same conduct that informs Plaintiff’s retaliation claim,
informs her hostile work environment claim.
As noted in the
allows consideration of events occurring before May 23, 2017 as
they relate to the hostile work environment claim.
Tonin, 2020 WL
3259083 at *6 (citing Holland v. Wash Home, Inc., 487 F.3d 208,
219 (4th Cir. 2007) (finding the theory applies to hostile work
Case 1:19-cv-00323-DKC Document 29 Filed 11/17/20 Page 24 of 29
environment claims, but not disparate treatment or retaliation
outside the time bar when those incidents are part of a single,
ongoing pattern of discrimination”)).
Therefore, additional facts from the amended complaint can be
previous opinion and unchanged in the amended complaint, that on
September 28, 2016 Defendant issued Plaintiff “two (2) separate
Notifications of Internal Investigation” involving undisclosed
“incidents” on June 24, 2016 and September 6, 2016, despite her
involvement in a March 2016 work-related car accident in which she
“suffered injuries to her hip.” (See ECF No. 23, ¶¶ 12-26); Tonin,
2020 WL 3259083 at *1.
As also previously detailed, Sgt. Ferinde
Plaintiff “for alleged failure to follow chain of command, minor
neglect of duty, and disobeying a directive,” for which she
received another notice thereafter.
(Id., ¶¶ 17-19).
It was for these instances, and others, that Plaintiff filed
her 2016 EEOC complaint against Sgt. Ferinde on October 23, 2016.
In alleged response, Sgt. Jason Bennett (whose exact relation to
Defendant, as with others, remains unclear) submitted a memorandum
to Maj. Robert Jackson (same) that Plaintiff’s “police powers had
been suspended that day due to medical reasons” including “extreme
emotional distress that is affecting her ability to perform the
Case 1:19-cv-00323-DKC Document 29 Filed 11/17/20 Page 25 of 29
duties as a Police Officer.”
Shortly thereafter, she began her
diagnosed her with the mental issues she continues to report.
(Id., ¶¶ 22-24).
Another otherwise time-barred series of incidents revolving
around her recovery from surgery on her hip is also relevant to
the hostile work environment claim.
Plaintiff adds new details to
her return to work from medical leave on February 10, 2017.
Mary Louise Grecke met with Plaintiff, as Defendant’s medical
provider, “to assess the status of her disability.”
claims she “interrogated her” about her physical limitations and
made dismissive and sarcastic remarks towards them (“you can squat?
. . . you can return to work now”).
The nurse, she claims, also
Plaintiff’s medical condition and disability.”
Nurse Gercke even
questioned Plaintiff about her EEOC complaint “which [Plaintiff]
had not disclosed [to her].”
These comments, Ms. Tonin argues,
were “based on [her] disability and her need for accommodations
. . . and [were] stated to intimidate Plaintiff and deter her from
engaging in protected activity and to return to work earlier than
her physician had requested.”
(ECF No. 23, ¶¶ 27-32).
issuance of two disciplinary actions against her that found that
she had “allegedly committed Preventable Departmental Accidents,”
Case 1:19-cv-00323-DKC Document 29 Filed 11/17/20 Page 26 of 29
which she now adds were dated December 19, 2016.7
April 25, 2017, as detailed in the original complaint, a Detective
Edward Gordon with IA reached out to Plaintiff to interview her
Plaintiff’s EEOC complaint” against Sgt. Ferinde.
(ECF No. 23,
¶ 39). Det. Gordon expressed a wish to “close out” the open cases,
and Plaintiff subsequently overheard him on April 26, 2017 speaking
with other Detectives and commenting that the cases against her
were “bull sh*t.”
She claims these comments “confirmed” to her
that these complaints and internal investigations were all part of
“ongoing harassment, ridicule, and discipline.”
(ECF No. 23, ¶
All of this led to Plaintiff’s discovery on May 18, 2017,
A hostile work environment sets a high bar.
Circuit has explained that, in proving a hostile work environment
under the ADA, a modified version of the Title VII test is used in
an ADA plaintiff must prove the following to
a hostile work environment claim:
(1) he is a qualified individual with a
disability; (2) he was subjected to unwelcome
A Lt. Balboa had apparently told Plaintiff not to expect
any disciplinary actions “after the incidents” even though she
claims, “Defendant had knowledge of Plaintiff’s disability,
requests for reasonable accommodations, and issued these
disciplinary actions for incidents that occurred over 6-months
earlier” anyway. (ECF No. 23, ¶ 34).
Case 1:19-cv-00323-DKC Document 29 Filed 11/17/20 Page 27 of 29
harassment; (3) the harassment was based on
his disability; (4) the harassment was
sufficiently severe or pervasive to alter a
term, condition, or privilege of employment;
and (5) some factual basis exists to impute
employer. See Brown v. Perry, 184 F.3d 388,
Fox v. Gen. Motors Corp., 247 F.3d 169, 177 (4th Cir. 2001) (citing
Brown v. Perry, 184 F.3d 388, 393 (4th Cir. 1999)).
has clarified that a plaintiff must allege “not only that [s]he
subjectively perceived h[er] workplace environment as hostile, but
also that a reasonable person would so perceive it, i.e., that it
was objectively hostile.”
Wilson v. Montgomery Cty. Brd. Of Trs.,
No.: PWG-17-2784, 2018 WL 43000498, at *5 (D.Md. Sept. 10, 2018)
(citing Fox, 247 F.3d. at 178).
This objective test looks to “the
frequency of the discriminatory conduct; its severity; whether it
is physically threatening or humiliating, or a mere offensive
employee’s work performance.” Id. (quoting Walton v. Mental Health
Ass’n, 168 F.3d 661, 667 (3d Cir. 1999)).
Defendant stresses that Plaintiff has failed to demonstrate
a “hostile or deeply repugnant” workplace, as the claim requires,
as opposed to a “merely unpleasant” one.
(ECF No. 24-1, at 14)
(citing Edmonson v. Potter, 118 F.App’x 726, 730 (4th Cir. 2004)).
Fox itself, the BPD highlights, found “actionable harassment”
where a plaintiff’s supervisors referred to the plaintiff and other
Case 1:19-cv-00323-DKC Document 29 Filed 11/17/20 Page 28 of 29
“disabled workers” as “handicapped MF” and “hospital people.”
F. 3d at 179.
Defendant also claims that Plaintiff fails to show
the conduct took place “because of her disability.”
On both the issue of severity and causal connection to her
conclusory remark that she suffered “recurring unwelcome conduct
based on her disability and requests for reasonable accommodations
from February 2017[,] when she returned to work from medical
leave[,] until January 25, 2019[,] that were sufficiently severe
to alter her terms of employment.”
(ECF No. 27-6, at 14) (quoting
Boyer-Liberto 786 F.3d at 277).
The remainder of the filing
reiterates that Plaintiff was “harassed and questioned about her
letters regarding six-month old conduct when she first returned
from medical leave in February 2017, just as she was “harassed and
subjected to investigative interviews” based “on complaints that
had no merit” with her other return from medical leave in April
The question of causal connection need not be addressed on
this claim,8 as Ms. Tonin’s allegations, even viewed collectively
over the entire relevant period, fail plausibly to state the kind
The only place causation is potentially relevant is with
Plaintiff’s unexplained reference to her termination.
discussed before, however, the termination need not be considered
as to any of these claims without more information.
Case 1:19-cv-00323-DKC Document 29 Filed 11/17/20 Page 29 of 29
of severe, perverse and outwardly discriminatory conduct that
constitutes a hostile work environment under the ADA.
conduct need not necessarily consist of the kind of aggressive,
degrading and outwardly hostile comments towards Plaintiff and
other disabled people seen in Fox.
The reprimands, questioning,
selective ignoring, and transferring of Plaintiff to undesirable
posts, which serve the basis of her retaliation claim, however,
are simply not concentrated enough in time or severity to give
rise to a proper hostile work environment claim.
None of this
conduct is sufficiently disruptive to alter the terms of employment
for an objectively reasonable person, even if it was found to be
subjectively hostile by Plaintiff because of her extreme stress,
anxiety and depression.
Count V will be dismissed.
For the foregoing reasons, the motion for leave to file an
opposition by Plaintiff is granted and the motion to dismiss filed
by Defendants will be granted in part and denied in part.
separate order will follow.
DEBORAH K. CHASANOW
United States District Judge
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