Owens v. Montgomery County Government, Department of Health and Human Services

Filing 27

MEMORANDUM. Signed by Judge J. Frederick Motz on 1/31/13. (dass, Deputy Clerk)(c/m 1/31/13-das)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

MARK R. OWENS

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v.
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MONTGOMERY COUNTY GOVERNMENT *
DEPARTMENT OF HEALTH AND HUMAN *
SERVICES
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Civil No. – JFM-11-1893

MEMORANDUM

Plaintiff has instituted this pro se action for employment discrimination against the
Montgomery County Government Department of Health and Human Services. Defendant has
moved for summary judgment. Plaintiff has opposed the motion and had cross-moved for
summary judgment. Defendant’s motion will be granted, and plaintiff’s motion will be denied.
I.
Plaintiff claims that defendant violated the Americans with Disabilities Act of 1990 by
failing to reasonably accommodate his medical conditions (ADHD and Major Depression) and
forcing him to retire.1 Plaintiff worked for defendant as a Therapist II in the Adult Addictions
Coordination Division. On June 10, 2002, plaintiff and the County entered into a work schedule
agreement. The agreement provided that it was “not to be construed or in any way deemed as an
admission of any violation of the Americans with Disabilities Act. . . .” It did not include a
duration or termination provision. Approximately four years later, on April 28, 2006, the
County’s Disability Program Manager recommended a fitness-for-duty evaluation of plaintiff
because the unit in which plaintiff was working was “developing materials and facilitating
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Plaintiff also asserts a claim under the Age Discrimination Act. There is, however, absolutely no evidence to
support a claim that defendant discriminated against plaintiff because of his age.

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processes to bring about operational and programmatic-changes that will affect the workingresponsibilities, duties and assignments of each Therapist II performing within [plaintiff’s]
class.” After plaintiff’s medical records were reviewed and he was medically examined,
plaintiff, on February 21, 2007, was notified that as the result of program changes and the
additional essential functions required of Therapist IIs, plaintiff would be given “one major
reasonable accommodation with multiple components,” including time to transition from one
task to another. On October 11, 2007, plaintiff met with the County’s disability program
manager, and the new, recalibrated reasonable accommodations were discussed. The County
advised plaintiff that “the terms of the 2000 agreement will expire on January 1, 2008.”
Thereafter, plaintiff advised the County that he intended to continue to telecommute and
take flex times on Fridays on and beyond January 1, 2008, in accordance with the terms of the
2002 agreement. Plaintiff was advised that he was “expected to return to a regular schedule of
work, and that if he did not work his full shift, absent being granted leave by his direct
supervisor, he would be considered absent without leave and that repeated incidents of being
AWOL would be a cause for disciplinary action.
Plaintiff did not resume a full work shift. Because he was suspected of misuse or abuse
of sick leave, he was placed on a sick leave restriction. He continued to have frequently and
unexcused absences. The County then issued to plaintiff a Statement of Charges. After the
Statement of Charges was executed, pursuant to the collective bargaining agreement with
plaintiff’s union, the parties agreed to an Alternative Dispute Resolution during which plaintiff
agreed that he would be placed on a Last Chance Settlement Agreement for time and attendance.
Plaintiff exceeded the time and attendance requirements contained in the Last Chance Settlement
Agreement, and the County issued a second Statement of Charges against him. Plaintiff then

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retired.
II.
Plaintiff has no direct evidence that defendant discriminated against him because of his
disability. Therefore, he must establish his claim under the burden-shifting framework set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Ennis v. Nat’l Ass’n of Bus. &
Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995).
One of the elements under the McDonnell Douglas protocol is that plaintiff proved that at
the time of his discharge, he was performing his job at a level that met his employers legitimate
expectations. Here, plaintiff has not done so. Rather, the evidence makes clear that plaintiff’s
inability to come to the office and his overuse of sick leave prevented him from meeting
defendant’s legitimate expectations as an employer. It is true, as plaintiff asserts, that the
changes made by defendant to his work schedule were inconsistent with the 2002 agreement.
However, under Maryland law a contract, silent as to its duration, is not presumed to be
perpetual but will be deemed to be in effect for a reasonable time. See Kylie v. The First Nat’l
Bank, 102 Md. App, 317, 335 (1994). Here, defendant, upon the advice of counsel, kept the
2002 agreement with plaintiff in effect for approximately five and a half years, from June 10,
2002 to January 1, 2008. Plaintiff has not cited any law or any facts to draw into question the
reasonableness of that duration. Moreover, nothing in the ADA suggests that a contract with a
disabled party is not subject to reasonable amendment. In that regard it is established that “an
accommodation that would require other employees to work harder is unreasonable.” Crabil v.
Charlotte Mecklenburg Bd. of Educ., 423 Fed. Appx. At 323 (4th Cir. 2011), citing Crabil, 708
F. Supp. 2d 542, 556 (W.D.N.C. 2010). Here, the record establishes that plaintiff’s productivity
was substantially lower than his peers in that he had 375 client visits, where his co-workers had

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client visits ranging between a low of 562 and a high of 794. The ADA does not require an
employer to hire or maintain the employment of a disabled person solely by virtue of that
person’s status. Rather, an employer’s obligation is to make reasonable accommodations to
make a disabled person’s performance relatively equal, within the range of reasonable to an
employee who is not disabled. Because of the disparity in plaintiff’s productivity and that of his
co-workers, it is clear that plaintiff did not meet the defendant’s legitimate expectations
concerning his performance.
A separate order granting defendant’s motion for summary judgment and denying
plaintiff’s cross-motion is being entered herewith.

Date: January 31, 2013

___/s/______________________
J. Frederick Motz
United States District Judge

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