Allen v. Johnson et al

Filing 12

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 6/10/10. (Chasanow, Deborah)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND EARL MARSHALL ALLEN, JR. v. JACK B. JOHNSON, et al. : : : : : MEMORANDUM OPINION Presently pending and ready for resolution in this Title VII and Americans with Disabilities Act case is Defendants' Civil Action No. DKC 09-1503

motion to dismiss, or in the alternative, for summary judgment (Paper 6). The issues are fully briefed and the court now rules

pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, the motion for summary judgment will be granted. I. Background Plaintiff Earl Marshall Allen is a deaf man. Plaintiff applied for a paralegal position In June 2007, the Prince

with

George's County Department of Corrections ("DOC"). Ex. 1.1).

(Paper 6,

The extensive application process included an initial polygraph examination, and record check, background data

application, investigation,

fingerprinting,

extensive

personal

questionnaires.

(Paper 6, Exs. 1, 1.2-1.4).

After submitting

all appropriate forms, Plaintiff submitted to and passed his

polygraph examination. Human Resources rated

The Prince George's County Office of his application as one of the most

qualified during a preliminary screening process.

Plaintiff's

application was forwarded to DOC for its rating, review and selection of the most qualified candidate for the position.

During the DOC interview process, Plaintiff was ranked as the most qualified candidate for the position. with Throughout JoAnn the Turner, the an of

process

Plaintiff aide

exchanged with

emails

administrative

DOC,

regarding

scheduling

interviews, materials he would need to submit, and the status of his application in general. (Paper 6, Ex. 1.7).

Plaintiff's background investigation was received by DOC on October 26, 2007. (Paper 6, Ex. 1.8). The background

investigation revealed that Plaintiff had been accused of sexual misconduct while a resident advisor at Gallaudet chief of University. the Human in

(Paper 6, Exs. 1.8-1.9). Resources Division,

William the

Frazier,

reviewed

background

investigation

early to mid-November 2007.

(Paper 11, Ex. 1).

On November 2, 2007, Plaintiff called Ms. Turner to check his application status. Ms. Turner, aware of Plaintiff's

disability, asked Plaintiff what accommodations would be needed in order for him to perform the job's requirements. The

necessary accommodations that Plaintiff specified included an interpreter for staff meetings 2 and a Sorensen Video Relay

Service if he was required to make or receive telephone calls. (Paper 6, Ex. 1.7, at 20). It was determined that the cost of

interpretation services would be $170 for the first hour and $65 per hour thereafter. regarding (Id. the at 48). Ms. of Turner requested Video

information

installation

the

Sorensen

Replay Service in December 2007. (Id. at 55).

Ms. Turner was

not aware of the results of the background investigation, and is not involved in the DOC hiring process other than to "co[n]vey hiring decisions to applicants." On January 29, 2008, (Paper 11, Ex. 2). Plaintiff's application was

while

still pending, Ms. Turner notified Plaintiff of a county-wide hiring freeze. (Paper 6, Ex. 1.10). On April 7, 2008, DOC sent

a letter to Plaintiff informing him that he was not selected for the position. (Paper 6, Ex. 1.11).

Plaintiff filed a timely complaint of discrimination with the Prince George's County Human Rights Commission on May 6, 2008. (Paper 6, Ex. 1.12). The Commission's executive director

determined that there was reasonable cause to believe the charge was true. On November 17, 2008, the Commission held a

conciliation conference where Defendants asserted, for the first time, that Plaintiff was not hired because of the information revealed in the background investigation. 1.17). December (Paper 6, Exs. 1.13,

The executive director dismissed Plaintiff's case on 16, 2008 (Paper 6, Ex. 3 17), and on appeal, the

Commission

upheld

the

decision.

The

Equal

Employment

Opportunity Commission issued Plaintiff a notice of right to sue dated March 10, 2009. (Paper 6, Ex. 1.21).

Plaintiff filed a complaint in this court on June 8, 2009, alleging that DOC rejected his application for the paralegal position because of his disability. (Paper 1). Defendants

filed a motion to dismiss or, in the alternative, for summary judgment on October 6, 2009. fully briefed. II. Standard of Review Defendants have moved to dismiss Plaintiff's complaint (Paper 6). That motion is now

pursuant to Fed.R.Civ.P. 12(b)(6), or in the alternative for summary judgment pursuant to Fed.R.Civ.P. 56. When "matters

outside the pleading are presented to and not excluded by the court, the [12(b)(6)] motion shall be treated as one for summary judgment and disposed of as provided in Rule 56." 12(b). Here, Defendants have appended multiple exhibits to their motions, several including affidavits. application Plaintiff documents, has also correspondence, attached his and own Fed.R.Civ.P.

affidavit.

Generally, where the parties present matters outside

of the pleadings and the court considers those matters, the court will treat the motion as one for summary judgment. See

Gadsby by Gadsby v. Grasmick, 109 F.3d 940, 949 (4th Cir. 1997); 4

Paukstis v. Kenwood Golf & Country Club, Inc., 241 F.Supp.2d 551, 556 (D.Md. 2003). It is well established that a motion for summary judgment will be granted only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(f); Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008). In other words, if there clearly

exists factual issues "that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party," summary judgment is inappropriate. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); JKC Holding Co. LLC v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). When ruling on a motion for summary judgment, the court must construe the facts alleged in the light most favorable to the party opposing the motion. See Scott v. Harris, 127 S.Ct. A party who bears

1769, 1774 (2007); Emmett, 532 F.3d at 297.

the burden of proof on a particular claim must factually support each element of his or her claim. 323. Celotex Corp., 477 U.S. at

"[A] complete failure of proof concerning an essential

element . . . necessarily renders all other facts immaterial." Id. Thus, on those issues on which the nonmoving party will

have the burden of proof, it is his or her responsibility to 5

confront the motion for summary judgment with an affidavit or other similar evidence in order to show the existence of a

genuine issue for trial. Corp., 477 U.S. at 324. will not suffice F.3d to 307,

See Anderson, 477 U.S. at 254; Celotex "A mere scintilla of proof, however, summary Cir. judgment." 2003). Peters must v. be

prevent 314

Jenney,

327

(4th

There

"sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249.

"If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." (citations omitted). III. Analysis In his complaint, Plaintiff claims that Defendants violated the Americans with Disabilities Act ("ADA") when they did not hire him. He contends the reason he was not hired was that Id. at 249-50.

Defendants wanted to avoid making reasonable accommodations for his disability. (Paper 10, at 9). Defendants dispute this

characterization and argue that Plaintiff was not hired due to the results of his background investigation. The ADA prohibits employers from "discriminat[ing] against a qualified individual with a disability because of the

disability of such an individual in regard to job application procedures, the hiring, advancement, or discharge of employees . . . ." 42 U.S.C. § 12112(a). 6 Under the ADA, "not making

reasonable limitations

accommodations of an

to

the

known

physical

or

mental with a

otherwise

qualified

individual

disability who is an applicant or employee" falls within the definition of discrimination. 42 U.S.C § 12112(b)(5)(A).

Failure-to-hire claims asserted under the ADA are evaluated under a modified version of the framework promulgated in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). the McDonnell Douglas

Under

scheme, a plaintiff must first make a

prima facie showing of discrimination by showing that he (1) is disabled within the meaning of the ADA; (2) applied for the vacant position; (3) was qualified for the position; and (4) was rejected for the position under circumstance giving rise to an inference of unlawful discrimination. See Anderson v.

Westinghouse Savannah River Co., 406 F.3d 248, 268 (4th Cir. 2005); Mackey v. Shalala, 360 F.3d 463, 468 (4th Cir. 2004). If a plaintiff alleges that the reason for his non-hire was discriminatory, the defendant has an opportunity to offer a

legitimate, non-discriminatory reason for the rejection of the applicant. Cir. 2004). See Williams v. Staples, Inc., 372 F.3d 662, 668 (4th Once the defendant offers a non-discriminatory

justification, the burden is on the plaintiff to establish "that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Tex.

Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 7

Where the plaintiff can show the falsity of the defendant's proffered explanation and a reasonable jury could infer that the explanation is pretextual, summary judgment is inappropriate. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000). The first element of the here. is prima facie case is satisfied

In his complaint, Plaintiff specifies that his disability It is well under established the ADA. 29 that deafness § is a

deafness.

recognized

disability

C.F.R.

1630.2(i);

Bryant v. Better Bus. Bureau, 923 F.Supp 720, 743 (D.Md. 1996). No dispute exists as to the second element, as both parties admit that Plaintiff applied for the paralegal position.

Similarly, Plaintiff has shown that he was generally qualified for the position.1 As to the fourth element, the evidence permits an inference of discrimination based on the timing of events. The results of

the background investigation were available before any inquiry on necessary accommodations was made, implying that nothing in the investigation was necessarily fatal to Plaintiff's

Defendants argue that Plaintiff was not qualified because his background investigation was not successfully completed. When the issues of qualification for the position as part of the prima facie case and the purported non-discriminatory reason for the refusal to hire turn on the same facts, it is important not to apply the prima facie test "too strictly" so as to avoid premature dismissal. Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 517 (4th Cir. 2006), cert. denied, 549 U.S. 812 (2006). 8

1

application. did

Only once the cost of the accommodations was known background investigation become important.

Plaintiff's

Furthermore, Defendants did not provide their explanation for the refusal to hire until after a complaint was filed. Plaintiff has set forth a prima facie case. Plaintiff proffered has not, however, reason shown is that Defendants' for unlawful Thus,

non-discriminatory i.e.,

pretext

discrimination,

Plaintiff's

background

investigation

revealing past misconduct.

The affidavits of Defendant Mary Lou

McDonough, deputy director of the Bureau of Administration of DOC; William Frazier, chief of the Human Resources Division; Verjeana McCotter-Jacobs, chief of the Division of Office of Professional and Legal Affairs; and administrative aide JoAnn Turner each articulate concerns about the background

investigation. Plaintiff discriminatory

(Paper 11, Exs. 1-4). does reason not is argue nor that does he Defendants' deny the nonsexual

false

misconduct allegations revealed by the background investigation. Furthermore, Plaintiff does not contend that a negative finding in a background investigation is not a legitimate, non-

discriminatory reason not to hire a candidate. Plaintiff does argue that Defendants' proffered reason was not offered until long after he was informed he would not be hired. He was informed of a hiring freeze on January 29, 2008, 9

notified of his rejection on April 7, 2008 and was not told that the background investigation was the reason until the November 17, 2008 conciliation at conference. times could Offering be evidence different that an

justifications

different

employer's explanation is pretext for unlawful discrimination. See EEOC v. Sears Roebuck and Co., 243 F.3d 846, 852-53 (4th Cir. 2001). Here, however, Defendants did not offer conflicting

reasons; rather, they only provided an explanation once called upon to do so during the conciliation process. Here, although Plaintiff was informed of the hiring freeze, he was still considered a candidate until March 2008, when a final decision was made (Paper 10, Ex. 1 ¶ 20). freeze is documented in Paper 6, Ex. 1.10. rejection in April 2008, Plaintiff The hiring

When notified of his not receive an

did

explanation of the reason he was not hired. not to provide any reason. first and only

It was the practice

The background investigation was the offered by Defendants for not

justification

hiring Plaintiff.

Defendants notified Plaintiff of the hiring

freeze on January 29, 2008 to explain a delay in the hiring process to a candidate who was still being considered at that time. Although the background investigation was reviewed in

early to mid-November by others, Ms. Turner was unaware of the background investigation results when she inquired about

10

accommodations.

She

was

not

privy

to

any

conversations

regarding a hiring decision. The exhibits offered by Defendants show that the background investigation revealed allegations of sexual misconduct and that concerns over the incident were the reason for not hiring

Plaintiff.

No basis exists on which a reasonable finder of fact

could conclude that the decision not to hire Plaintiff was based on an unlawful refusal to make reasonable accommodations for the deafness of Plaintiff. IV. Conclusion For the foregoing reasons, Defendants' motion to dismiss, construed as a motion for summary judgment, will be granted. separate Order will follow. A

/s/ DEBORAH K. CHASANOW United States District Judge

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