Raiford v. Maryland Dept. of Juvenile Services
Filing
40
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 8/28/14. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
GREGORY RAIFORD
:
v.
:
Civil Action No. DKC 12-3795
:
MARYLAND DEPT. OF JUVENILE
SERVICES
:
MEMORANDUM OPINION
Presently
pending
and
ready
for
resolution
in
this
disability discrimination case are a motion filed by Defendant
Maryland
Department
of
Juvenile
Services
(“Defendant”)
to
dismiss the amended complaint (ECF No. 22), and a motion filed
by Plaintiff Gregory Raiford for leave to file a second amended
complaint (ECF No. 28).
The issues have been briefed, and the
court now rules, no hearing being deemed necessary.
105.6.
Local Rule
For the reasons that follow, Plaintiff will be permitted
to file a second amended complaint, albeit without some of the
proposed
claims.
Defendant’s
motion
to
dismiss
the
first
amended complaint will be denied as moot.
I.
Background
A.
Factual Background
Plaintiff Gregory Raiford commenced this action against the
Maryland Department of Juvenile Services, alleging violations of
the
Americans
Plaintiff
was
with
pro
Disabilities
se
at
the
Act
time
(“ADA”).
he
filed
(ECF
No.
1).
the
original
complaint, but has since retained counsel.
(ECF No. 11).
After
retaining counsel, Plaintiff filed an amended complaint.
(ECF
No. 19).
The following allegations are contained in the amended
complaint.
Plaintiff
was
employed
by
the
Maryland
Department
of
Juvenile Services at the Cheltenham Youth Facility as a Resident
Advisor.
(Id. ¶ 3).
On June 21, 2010, Plaintiff suffered
injury to his left knee as a result of breaking up two juveniles
who were engaged in a fight at the facility.
(Id. ¶ 4).
underwent surgery for this injury on December 10, 2010.
5).
Plaintiff
believes
he
was
injured
because
He
(Id. ¶
there
were
“unsafe conditions at the facility and [an] unsafe number of
juveniles for each resident advisor.”
(Id. ¶ 6).
After his
injury and until his surgery, Mr. Raiford was placed on modified
duty, under which he had no contact with juveniles in the gate
house and the special duty post, both of which were outside the
facility.
(Id. ¶ 7).
Plaintiff underwent surgery for his knee injury on December
10, 2010.
(Id. ¶ 5).
On March 9, 2011, Plaintiff returned to
work and requested that he be allowed to work in a modified
capacity again; Defendant denied this request.
(Id. ¶ 8).
The
next day, Plaintiff was told to report to Ms. White and Ms.
Pinkney, Group Life Directors at the facility.
According to
Plaintiff,
that
Ms.
White
and
Ms.
Pinkney
2
told
him
he
was
required to work full duty assignments at all locations in the
facility.
(Id. ¶ 10).
permanently
and
Plaintiff asserts that “the facility
regularly
assigned
four
full
duty
Resident
Advisors to the gate house and special duty post (modified duty)
on a daily basis.”
(Id.).
Plaintiff again injured his knee the next month, on April
3, 2011, as a result of separating two individuals engaged in a
fight.
(Id. ¶ 11).
When Plaintiff returned to work after this
second knee injury, “his knee was not at its full strength and
Plaintiff
feared
that
he
would
reinjure
it
again
if
he
was
required to work full duty and to separate fighting juvenile
residents.”
(Id. ¶ 13).
According to Plaintiff, modified duty
positions at the gate house and the special duty post outside
the
facility
remained
available,
but
Defendant
refused
to
accommodate Plaintiff’s request that he be assigned to those
positions.
(Id. ¶ 14).1
Plaintiff
states
that
he
again
“separated
juvenile
residents who were involved in another fight, aggravated the
injury
again.”
was
to
his
leg,
(Id. ¶ 17).
examined
by
Dr.
and
then
sought
medical
attention
once
Plaintiff avers that on April 15, 2011, he
Weeks
“who
requested
that
he
have
an
Independent Medical Evaluation and provided written instructions
1
Plaintiff also contends that he was scheduled to work
overtime, which was mandatory. (ECF No. 19 ¶ 16).
3
to the Defendant and the facility to assign Plaintiff to work at
a modified duty capacity.”
(Id. ¶ 18).
The next day, Mr.
Wilson, the facility superintendent, allegedly told Plaintiff
that he would not be allowed to work in a modified duty capacity
and would be referred to a different doctor.
Plaintiff was
asked to leave the facility after this meeting on April 16, 2011
and
was
placed
on
sick
leave.
(Id.
¶¶
19-20).
Plaintiff
asserts that he repeatedly asked Ms. White, Ms. Pickney, and the
Human Resources Department to be placed on modified duty in May
2011, but these requests were again denied.
Plaintiff
Maryland
was
Medical
then
ordered
Director,
on
to
May
see
23,
Dr.
2011.
Robert
(Id.
Toney,
¶
23).
Plaintiff asserts that Dr. Toney evaluated him for only fifteen
minutes.
After this evaluation with Plaintiff, Dr. Toney wrote
a letter to Defendant on May 25, 2011, stating that Plaintiff
was unable to perform his duties as a Resident Advisor.
24).
Plaintiff
contends
that
consequently,
he
was
(Id. ¶
told
to
resign or be fired from his position.2
Mr. Raiford received a “Letter of Requirements,” dated May
31, 2011.
(Id. ¶ 26).
Ms. White, the Director of Group Life at
the Department of Juvenile Services, told him that he could
2
Plaintiff asserts that he complained to the union about
“his treatment,” but his complaints were unsuccessful. (ECF No.
19 ¶ 25).
4
either
quit
or
be
fired.
Plaintiff
believed
that
if
he
resigned, he was eligible to reapply with the state at a later
date, albeit for a different position.
Mr. Raiford states that
he did not want to end his employment, but was “forced out after
Defendant refused to modify his duty in order to accommodate the
requirements
of
the
injury
he
received
duties of his employment for Defendant.”
while
performing
(Id. ¶ 27).
the
Plaintiff
asserts that Defendant violated the Americans with Disabilities
Act by refusing to place him on modified duty, which his medical
provider urged was required due to his two knee injuries.
B.
Procedural History
Plaintiff filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) on April 10, 2012,
alleging
disability
discrimination.
(ECF
No.
22-3).
received a Right to Sue letter on September 26, 2012.
1-2).
On
December
26,
2012,
Plaintiff
filed
He
(ECF No.
his
initial
complaint in this court, alleging violations of the Americans
with
Disabilities
Act
against
the
Services and seeking monetary relief.
Department
of
(ECF No. 1).
Juvenile
Plaintiff
did not properly serve Defendant, prompting multiple orders from
the
(ECF
undersigned
No.
5,
6,
instructing
8,
10).
Plaintiff
As
stated
as
to
above,
proper
service.
Plaintiff
later
retained counsel, who moved to correct the summons (ECF No. 12),
which was granted (ECF No. 13).
5
Defendant
2013.
moved
to
(ECF No. 18).
dismiss
the
complaint
on
August
29,
On the same date, Plaintiff filed an
amended complaint (ECF No. 19), mooting the motion to dismiss.
The amended complaint included several additional allegations,
but asserted the same claim under the ADA and sought $150,000 in
damages from the Department of Juvenile Services.
Defendant
then again moved to dismiss the amended complaint on September
12, 2013 (ECF No. 22).
Plaintiff opposed the motion (ECF No.
25), and Defendant replied (ECF No. 30).
Then, Plaintiff moved
for leave to amend the complaint, (ECF No. 28), and Defendant
opposed the motion (ECF No. 34).3
In the proposed second amended
complaint, Plaintiff seeks to add as a new defendant Sam J.
Abed, the Secretary of Juvenile Services, in his official and
individual capacity.
(ECF No. 28-2 ¶ 34).
Plaintiff also seeks
to add a claim under Section 504 of the Rehabilitation Act of
1973, 29 U.S.C. § 794, premised on the same allegations.
requests
declaratory
and
monetary
relief,
and
He
seeks
reinstatement.
3
Plaintiff initially filed a second amended complaint
without obtaining Defendant’s consent or seeking leave to amend.
Plaintiff then withdrew this complaint and moved for leave to
amend.
6
II.
Motion for Leave to Amend Pursuant to Fed.R.Civ.P. 15(a)
A.
Standard of Review
Rule 15(a)(1) permits a party to amend its pleading once as
a matter of course within 21 days after serving it; or 21 days
after service of a responsive pleading or 21 days after service
of a motion under Rule 12(b), (e), or (f), whichever is earlier.
Plaintiff already amended the complaint once.
Plaintiff
then
complaint
after
complaint.
moved
for
Defendant
(ECF No. 28).
leave
moved
to
to
file
(ECF No. 19).
a
second
dismiss
amended
the
amended
Pursuant to Fed.R.Civ.P. 15(a)(2),
the court should “freely give leave [to amend pleadings] when
justice so requires.”
The court should deny leave to amend only
when “the amendment would be prejudicial to the opposing party,
there has been bad faith on the part of the moving party, or the
amendment would be futile.”
Edwards v. City of Goldsboro, 178
F.3d 231, 242 (4th Cir. 1999) (citation and internal quotation
marks omitted); Keller v. Prince George’s Cnty., 923 F.2d 30, 33
(4th Cir. 1991) (upholding district court order denying plaintiff
leave to amend his complaint to include claims that were barred
by the applicable statute of limitations because such amendment
would be futile).
“An amendment is futile when the proposed
amendment is clearly insufficient or frivolous on its face, or
if the amended claim would still fail to survive a motion to
dismiss pursuant to Fed.R.Civ.P. 12(b)(6).”
7
El-Amin v. Blom,
No. CCB-11-3424, 2012 WL 2604213, at *11 (D.Md. July 5, 2012)
(internal citations and quotation marks omitted).
B.
Analysis
Defendant
argues
that
there
are
multiple
Plaintiff’s proposed second amended complaint.
problems
with
First, Defendant
incorporates the arguments made in its motion to dismiss the
first
amended
complaint
that
Plaintiff’s
complaint
should
be
dismissed for insufficient process and insufficient service of
process pursuant to Fed.R.Civ.P. 12(b)(2), (4), & (5).
Service
of
process
was
a
problem
for
Plaintiff
at
the
outset of this case when he was pro se, and he was granted
several
extensions
properly.
to
serve
(ECF Nos. 5 & 8).
the
Maryland
Attorney
General
After Plaintiff’s newly-retained
counsel entered his appearance on June 26, 2013 (ECF No. 11), he
also moved to correct the summons issued by his client, which
the undersigned granted.
(ECF Nos. 12 & 13).
Fed.R.Civ.P. 4(c)
provides that “[a] summons must be served with a copy of the
complaint.”
According to Defendant, Plaintiff served a summons
without the complaint.
apparently
alerted
(ECF No. 22-2).
Plaintiff
of
this
Defense counsel then
deficiency
and
twice
requested – via phone and e-mail on August 12 and 14, 2013,
respectively – that he send a copy of the complaint.
copy was ever provided to the Department.”
n.1).
Plaintiff’s
counsel
does
8
not
“[Y]et no
(ECF No. 22-1, at 5
dispute
that
he
never
provided a copy of the complaint to Defendant, but argues that
it had actual notice of the EEOC claim. “Generally, when service
of process gives the defendant actual notice of the pending
action, the courts may construe Rule 4 liberally to effectuate
service and uphold the jurisdiction of the court.”
O’Meara v.
Waters, 464 F.Supp.2d 474, 476 (D.Md. 2006) (citing Karlsson v.
Rabinowitz, 318 F.2d 666, 668 (4th Cir. 1963); Armco, Inc. v.
Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir.
1984).
But as Defendant points out, having actual notice of the
administrative action is not the same as having actual notice of
a
federal
lawsuit.
troubling.
permitted
As
to
Plaintiff’s
will
file
be
a
disregard
discussed
second
below,
amended
for
the
Plaintiff
complaint
and,
rules
is
will
be
in
the
interest of justice, the action will not be dismissed on the
basis of improper service.
the
pending
litigation
Defendant obtained actual notice of
and
has
been
able
to
challenge
the
sufficiency of the pleadings.
Next, Defendant asserts that “Plaintiff’s amendment is a
result of undue delay and repeated failures to cure a multitude
of
deficiencies
complaint.
Department
The
and
in
any
of
amendment
Secretary
the
would
Abed,
prior
also
while
[]
versions
being
the
futile
numerous substantive and procedural deficiencies.”
at 3-4).
the
prejudice
unduly
of
due
to
(ECF No. 24,
Plaintiff’s motion to amend is completely devoid of
9
any explanation for not having earlier amended the complaint.
Indeed,
Plaintiff’s
prejudice,
bad
faith,
motion
and
contains
futility
no
analysis
factors
of
Rule
under
the
15;
instead, Plaintiff merely appends his proposed second amended
complaint to the motion and declares that it will “clarify the
remaining issues in this case.”4
(ECF No. 28, at 1).
Nor has
Plaintiff filed a reply brief in support of his motion for leave
to
amend.
contains
It
any
does
new
not
factual
appear
that
the
proposed
complaint
allegations;
the
Rehabilitation
Act
claim is largely premised on the same facts contained in the two
prior complaints.
moved
for
leave
Putting these deficiencies aside, Plaintiff
to
amend
fairly
quickly
after
presumably
realizing the deficiencies contained in his amended complaint,
insofar as he sought compensatory relief from the Department of
Juvenile Services for violations of the ADA.
Because it does
not appear that Defendant will be prejudiced or that there was
undue delay, the final step is to determine whether amendment
would be futile.
4
Every motion must include supporting facts and legal
analysis, which is surprisingly absent from Plaintiff’s motion
to amend.
Plaintiff’s counsel would be well-advised carefully
to review the Federal Rules of Civil Procedure and the Local
Rules to ensure compliance therewith going forward.
10
1.
ADA Claim against the Department of Juvenile Services
In its opposition to Plaintiff’s motion to amend, Defendant
incorporates
dismiss
all
as
to
of
why
the
the
arguments
ADA
claim
from
its
against
Juvenile Services must be dismissed.
prior
to
Department
the
motion
of
First, Defendant argues
that it enjoys sovereign immunity under the Eleventh Amendment
for claims under the ADA seeking monetary relief against state
agencies.
Under the Eleventh Amendment to the United States
Constitution, a state, its agencies and departments, cannot be
sued
in
consent.
federal
court
by
its
citizens
without
the
state’s
See U.S. Const. Amend, XI; Dixon v. Balt. City Police
Dep’t, 345 F.Supp.2d 512, 513 (D.Md. 2003).
In his opposition
to the motion to dismiss, Plaintiff concedes this point.
the
amended
complaint
seeks
monetary
relief,
as
well
But
as
declaratory judgment and reinstatement, presumably against both
the Department of Juvenile Services and Secretary Abed.
extent
Plaintiff
still
seeks
monetary
relief
under
To the
the
ADA
against the Department of Juvenile Services or Secretary Abed in
his official capacity in the proposed second amended complaint,
leave to file will be denied.
Bd. of Trustees of the Univ. of
Ala. V. Garrett, 531 U.S. 356, 363-74 (2001) (Congress did not
validly abrogate the State’s sovereign immunity from suit by
private individuals for monetary damages under Title I of the
ADA).
11
Plaintiff
also
may
not
seek
equitable
relief
or
reinstatement from the Department of Juvenile Services, although
such relief may be sought from a state official sued in his
official capacity.
Will v. Michigan Dep’t of State Police, 491
U.S. 58, 71 n.10 (1989) (where “a state official in his or her
official
capacity
‘official-capacity
[is]
sued
actions
for
for
injunctive
prospective
relief
relief
.
are
.
.
not
treated as actions against the State.’” (quoting Ex parte Young,
209 U.S. 123, 159-60 (1908))).
Accordingly, Plaintiff will not
be permitted to bring an ADA claim against the Department of
Juvenile Services.
2.
ADA
Capacity
Claim
against
Secretary
Abed
in
his
Official
Defendant argues that “the addition of Secretary Abed in
his official capacity is a legal redundancy inasmuch as a suit
filed against him in such a manner is the same as a suit against
the State.”
(ECF No. 34, at 6).
Because the type of relief
Plaintiff seeks under the ADA in his proposed second amended
complaint can only be recovered against a state official in his
official capacity, the ADA claim against Secretary Abed is not
redundant.
Kronk v. Carroll County, MD, Civ. Case No. L-11-
0277, 2012 WL 245059, at *8 (D.Md. Jan. 25, 2012) (“[c]ourts
have
specifically
recognized
that
reinstatement under the doctrine of
12
a
plaintiff
Ex Parte Young
may
seek
in cases
alleging violations of the ADA”); Fink v. Richmond, Civ. Action
No. DKC 2007-0714, 2008 WL 9364730, at *8 (D.Md. Mar. 24, 2008)
(“Plaintiff
may
seek
prospective
injunctive
relief
from
Defendants Hettel and Richmond under the ADA, even if sovereign
immunity bars the damage action.”).
Defendant also argues that Plaintiff has not exhausted his
administrative remedies as to Secretary Abed because he was not
named in the EEOC charge filed on April 10, 2012.
3).
As
a
general
rule,
a
civil
action
(ECF No. 22-
for
employment
discrimination may only be brought against the party named in
the original administrative charges filed with the EEOC.
See
Alvarado v. Board of Trustees of Montgomery Community College,
848 F.2d 457, 458 (4th Cir. 1988); Afande v. National Lutheran
Home for the Aged, 868 F.Supp. 795, 800 (D.Md. 1994).
The
naming requirement serves dual purposes: “[f]irst, it notifies
the charged party of the asserted violation[;]
brings
the
charged
before
of
effectuation
party
Act’s
primary
the
voluntary compliance with the law.”
59.
“This
requirement
fashion, however.
is
not
the
[s]econdly, it
EEOC
goal,
and
the
permits
securing
of
Alvarado, 848 F.2d at 458-
applied
in
a
hyper-technical
It will be excused when the complainant names
an entity that is functionally identical to the legal entity
against
which
suit
would
eventually
be
filed,
purposes of the requirement are substantially met.”
13
or
when
the
Kronk, 2012
WL 245059, at *5; Alvarado, 848 F.2d at 460 (naming requirement
satisfied when charge named college instead of board of trustees
because the two entities were essentially identical).
In cases where courts have overlooked a plaintiff’s failure
to name individual defendants in their official capacity in the
charging complaint, the defendants at issue held positions where
they represented the named defendant corporation or organization
in an official capacity, such as here.
McAdoo v. Toll, 591
F.Supp. 1399, 1404 (D.Md. 1984) (naming requirement satisfied
where charge listed University of Maryland and the complaint
included specific university officials, such as the President,
Chancellor, and Provost in their official capacities); Efird v.
Riley,
342
requirement
F.Supp.2d
satisfied
413,
when
420
(M.D.N.C.
sheriff’s
department
2004)
was
(naming
named
as
respondent in the EEOC charge and plaintiff subsequently sued
the sheriff); Vanguard Justice Soc. Inc. v. Hughes, 471 F.Supp.
670, 689 (D.Md. 1979) (naming requirement satisfied where charge
listed
Civil
Service
Commission
of
Baltimore
and
complaint
included individual commissioners in their official capacity);
cf. Davis v. BBR Management LLC, Civ. Action No. DKC 10-0552,
2011 WL 337342, at *5 (D.Md. Jan. 31, 2011) (“the individual
defendants named in [p]laintiff’s complaint had no reason to
know of the EEOC charge and were not in positions to make them
substitutable
for
or
essentially
14
identical
to
the
named
respondent in the charge.”).
extent
Secretary
Abed
is
Such is the case here, to the
named
in
his
official
capacity.
Accordingly, Plaintiff’s failure to name Secretary Abed in his
official capacity in the EEO complaint is not detrimental to his
ADA claim for injunctive relief against Secretary Abed in his
official capacity.5
Defendant
also
challenges
the
timeliness
of
Plaintiff’s
claim of failure to accommodate pursuant to the ADA.
The ADA –
using the procedures of Title VII - requires a plaintiff to file
an
EEOC
charge
within
a
prescribed
limitations
period.
42
U.S.C. § 2000e–5(e)(1).
In deferral states such as Maryland,
that
is
limitations
period
300
Id.6
allegedly discriminatory act.
these
time
limits
and
limitations periods.”
days
rarely
from
the
date
of
the
“Courts strictly adhere to
allow
equitable
tolling
of
Khoury v. Meserve, 268 F.Supp.2d 600, 606
(D.Md. 2003), aff’d, 85 F.App’x 960 (4th Cir. 2004).
Plaintiff’s EEO charge was filed on April 10, 2012, meaning
that
only
occurred
those
within
acts
300
that
days
allegedly
of
that
violated
date
are
the
ADA
timely
which
filed.
5
Plaintiff alleges a violation of Title I and Title II of
the ADA in his proposed second amended complaint, but only Title
I applies because it governs disability discrimination in the
employment context.
6
A “deferral state” is one that has its own state or local
agency with authority to grant or seek relief from employment
discrimination or to institute criminal proceedings on behalf of
the alleged victim. 42 U.S.C. § 2000e-5(e)(1).
15
Defendant argues that Plaintiff alleged in the EEO complaint
that he was denied his request for a reasonable accommodation on
April 17, 2011, but he did not bring his EEO claim until April
10, 2012, more than 300 days later.
1, at 14).
(ECF No. 22-3; ECF No. 22-
Plaintiff believes that the clock started to run on
July 1, 2011, when he “involuntarily resigned,” because he “was
allowed
to
continue
to
work
and
receive
benefits
from
his
employment at Defendant Department of Juvenile Services” until
then.
(ECF No. 25, at 3).
Plaintiff attempts to use the
“continuing violation” theory, which “allows for consideration
of
incidents
incidents
that
are
occurred
part
discrimination.”
of
outside
a
the
time
single,
bar
ongoing
when
those
pattern
of
Holland v. Wash. Homes, Inc., 487 F.3d 208,
219 (4th Cir. 2007) (citing Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 118 (2002)).
The continuing violation theory only applies, however, when
an employee asserts a hostile work environment claim.
Id.; see
also Szedlock v. Tenet, 61 F.App’x 88, 93 (4th Cir. 2003) (“The
Supreme Court’s ruling in [Morgan], however, makes clear that
unless the plaintiff alleges a hostile work environment [claim]
. . . each instance of discrimination is a discrete act.”).
Plaintiff cites no authority discussing the continuing violation
doctrine
Courts
in
that
the
have
context
of
analyzed
a
the
16
failure
to
doctrine
accommodate
in
claim.
connection
with
failure to accommodate claims have concluded that the doctrine
does not apply.
See Teague v. Northwestern Mem’l Hosp., 492
F.App’x 680, 684 (7th Cir. 2012); Tobin v. Liberty Mut. Ins. Co.,
553 F.3d 121, 130-31 (1st Cir. 2009); Mayers v. Laborers’ Health
& Safety Fund of N. Am., 478 F.3d 364, 368 (D.C. Cir. 2007);
Marshall v. Donahoe, No. DKC 12-0431, 2013 WL 597596, at *4
(D.Md. Feb. 15, 2013); Taylor v. Fed. Express Corp., No. RDB-03195,
2004
Consequently,
WL
5231978,
a
at
*9
plaintiff
may
only
(D.Md.
July
proceed
and
28,
2004).
recover
on
deliberate discrimination that occurred within the limitations
period, Lewis v. City of Chicago, Ill., 560 U.S. 205, 214-15
(2010),
although
he
is
not
barred
from
using
prior
acts
as
background evidence in support of a timely claim, Morgan, 536
U.S. at 113.7
Therefore, only those acts that occurred between
June 15, 2011 and April 10, 2012 are actionable as a failure to
7
Plaintiff’s proposed second amended complaint includes
identical
claims
under
the
Rehabilitation
Act.
The
Rehabilitation Act – unlike the ADA – has no administrative
exhaustion requirement.
It also does not specify a limitation
period.
Because of this, courts “borrow” the most appropriate
or analogous state statute of limitations and apply it to the
federal cause of action.
See A Soc’y Without A Name v.
“Maryland courts
Virginia, 655 F.3d 342, 347 (4th Cir. 2011).
apply the three-year limitations period governing general civil
actions to [] Rehabilitation Act claims.”
Jeandron v. Bd. of
Regents of Univ. Sys. of Md., 510 F.App’x 223, 226 (4th Cir.
2013) (citations omitted); see also Schalk v. Associated
Anesthesiology Practice, 316 F.Supp.2d 244, 251 (D.Md. 2004)
(holding that “the statute of limitations for Rehabilitation Act
claims in Maryland is three years”). Plaintiff’s Rehabilitation
Act claim falls within this time period.
17
accommodate claim under the ADA against Secretary Abed in his
official capacity.8
3.
ADA
Capacity
Claim
against
Secretary
Abed
in
his
Personal
The
claim
against
Secretary
Abed
in
his
personal
ADA
capacity will not proceed because “the ADA does not authorize
suit
against
individuals
for
violating
its
provisions.”
Altevorgt v. Kirwan, Civ. No. WDQ-11-1061, 2012 WL 135283, at *
5 (D.Md. Jan. 13, 2012); Baird v. Rose, 192 F.3d 462, 472 (4th
Cir. 1999); Jones v. Sternheimer, 387 F.App’x 366, 368 (4th Cir.
2010) (“Title VII, the ADA, and the ADEA . . . do not provide
for
causes
of
action
against
defendants
in
their
individual
capacities.”); Koslow v. Pennsylvania, 302 F.3d 161, 178 (3rd
Cir. 2002) (“there appears to be no individual liability for
damages under Title I of the ADA” because the statute is limited
to
“employers”
although
with
Plaintiff
fifteen
names
or
more
Secretary
employees).
Abed
in
his
Moreover,
personal
capacity, he states that Sam J. Abed has violated the ADA “[i]n
his capacity as Secretary of Juvenile Services.”
8
(ECF No. 28-2
In the reply brief to its motion to dismiss, Defendant
argued – for the first time – that to the extent Plaintiff
alleges constructive discharge, this claim is also untimely.
(ECF No. 30, at 4). Because Defendant raised this argument for
the first time in the reply brief, and did not brief it in its
opposition to Plaintiff’s motion to amend, it will not be
addressed.
18
¶ 38).9
Plaintiff has not identified any acts by Secretary Abed
that would subject him to personal liability for the alleged
failure of the Department of Juvenile Services to provide a
reasonable accommodation for Plaintiff.
4.
Rehabilitation
Juvenile Services
Defendant
argues
Act
that
Claim
the
against
same
the
grounds
Department
it
asserted
of
to
support dismissal of the ADA claim also support denying leave to
amend
to
include
a
Rehabilitation
Defendant is not quite correct.
Act
claim
against
it.
Plaintiff’s claims against the
Department of Juvenile Services under the Rehabilitation Act are
not subject to dismissal on sovereign immunity grounds because
“a State that accepts federal funding under the Rehabilitation
Act thereby waives its sovereign immunity in suits brought under
that Act.”
Hartman v. University of Maryland at Baltimore, Civ.
9
Furthermore, Plaintiff also failed to exhaust his
administrative remedies insofar as he seeks to bring an ADA
claim against Secretary Abed in his personal capacity because he
did not name him in his personal capacity in his EEO complaint.
Vaeth v. Mayor and City Council of Balt. City, Civ. No. WDQ-110182, 2011 WL 4711904, at *3 (D.Md. Oct. 4, 2011) (“individual
defendants are not subject to personal liability when an EEOC
charge names only the City of Baltimore as the respondent”);
Tuttle v. Anuvia Prevention & Recovery, No. 3:13CV134, GCM, 2013
WL 3899666, at *3 (W.D.N.C. July 29, 2013) (“the fact that some
of the Defendants may have had knowledge of Plaintiff’s EEOC
charge against the company does not put them on notice that they
could
be
personally
liable
for
the
alleged
violations.
Therefore, Plaintiff’s [] ADA claim[] [is] also dismissed for
lack of subject matter jurisdiction due to her failure to
exhaust her administrative remedies with respect to the
individual Defendants.”).
19
Action No. ELH-10-2041, 2013 WL 6858854, at *2 (D.Md. Dec. 20,
2013); Constantine v. Rectors & Visitors of George Mason Univ.,
411 F.3d 474, 493 (4th Cir. 2005); Adams, 834 F.Supp.2d at 391
(“The
Fourth
unambiguous
Eleventh
Circuit
and
has
unequivocal
Amendment
immunity
receive federal funding”).
relief
from
held
the
Department
that
this
condition
for
provision
certain
claims
in
an
waiver
requiring
is
of
order
to
Thus, Plaintiff can seek monetary
of
Juvenile
Services
under
the
Rehabilitation Act, as long as the claim has been sufficiently
pled.
Defendant next argues that Plaintiff failed to establish
that he was a “qualified individual” under the Rehabilitation
Act.
(ECF No. 34, at 10).
accommodate
under
Section
To state a claim for failure to
504
of
the
Rehabilitation
Act,
Plaintiff must allege facts supporting: “(1) that he was an
individual
who
had
a
disability
within
the
meaning
of
the
statute; (2) that the employer had notice of his disability; (3)
that
with
reasonable
essential
functions
[employer]
refused
of
to
accommodation
the
make
position
such
he
[];
could
and
perform
(4)
accommodations.”
that
Rhoads
the
the
v.
FDIC, 257 F.3d 373, 387 n.11 (4th Cir. 2001); Doe v. Univ. of Md.
Med. Sys. Corp., 50 F.3d 1261, 1264 n.9 (4th Cir. 1995) (“Because
the language of [Title I of the ADA and Section 504 of the
Rehabilitation Act] is substantially the same, we apply the same
20
analysis to both.”).
Plaintiff bears the burden of establishing
his ability to perform the essential functions of his job with a
reasonable accommodation.
Tyndall v. Nat’l Educ. Cts., Inc., 31
F.3d 209, 213 (4th Cir. 1994).
“Reasonable accommodations” are
“[m]odifications or adjustments to the work environment, or to
the manner or circumstances under which the position held or
desired
is
customarily
performed,
that
enable
a
qualified
individual with a disability to perform the essential functions
of that position.”
29 C.F.R. § 1630.2(o)(1)(ii).
Defendant contends that Plaintiff “has offered nothing but
bald and conclusory statements to suggest that he was capable of
performing
the
simultaneously
essential
asserting
functions
of
that
State
the
the
position,
Medical
while
Director
determined he was unable [to] perform[] the duties of a Resident
Advisor.”
(ECF No. 34, at 10-11).
unavailing.
Defendant’s argument is
In the proposed second amended complaint, Plaintiff
asserts that he could perform the essential functions of the job
by working at the gate house and special assignment post from
June 21, 2010 until his surgery on December 10, 2010.
28-2 ¶ 43).
(ECF No.
Moreover, Plaintiff asserts that other Resident
Advisors were assigned to the gate house and special assignment
post.
That Dr. Robert Toney, the Medical Director in Maryland,
concluded that Plaintiff was unable to perform his duties as a
Resident
Advisor
is
inapposite
21
at
this
stage,
considering
Plaintiff’s allegation that Dr. Toney evaluated him in less than
fifteen minutes and was not an orthopedic specialist.
26).10
(Id. ¶
Accordingly, the failure to accommodate claim under the
Rehabilitation Act is not futile.
5.
Rehabilitation Act Claim against Secretary Abed in his
Official Capacity
Defendant argues that Plaintiff’s Rehabilitation Act claim
against
Secretary
Abed
in
his
official
capacity
is
futile
because “the proposed complaint is void of any reference of
action on behalf of Secretary Abed regarding the allegations of
discrimination”
and
Rehabilitation
Act
involvement.
Abed
in
the
count
does
not
alleging
mention
(ECF No. 34, at 9).
his
official
Rehabilitation
Act
capacity
is
in
violations
Secretary
of
the
Abed’s
A lawsuit against Secretary
alleging
essence
a
violations
lawsuit
of
the
against
the
Department of Juvenile Services and Plaintiff need not plead any
personal
involvement
by
Secretary
Abed
in
the
alleged
violations.
Plaintiff may seek monetary damages and equitable
relief
either
from
the
Department
of
Juvenile
Services
or
Secretary Abed in his official capacity for violations of the
Rehabilitation
Act.
Shepard v. Irving, 77 F.App’x 615, 619 (4th
10
Defendant
does
not
challenge
the
sufficiency
of
Plaintiff’s allegations as to the other elements of a failure to
accommodate claim under the Rehabilitation Act.
(See ECF No.
34, at 10-11).
22
Cir.
2003)
relief
(“the
against
Mulherin,
in
plaintiff
[George
their
may
seek
Mason
official
damages
University]
capacities,
and
and
under
§
injunctive
Merten
and
504
the
of
Rehabilitation Act.”).
6.
Rehabilitation Act Claim against Secretary Abed in his
Personal Capacity
Plaintiff’s
Secretary
Abed
claim
in
Act
Rehabilitation
his
does
under
the
personal
not
Rehabilitation
capacity
impose
fails
liability
on
Act
against
because
the
individuals.
Stiner v. Bd. of Educ. of Cecil County Maryland, Civ. Action No.
WDQ-13-1484, 2014 WL 69111, at *3 (D.Md. Jan. 7, 2014); Young v.
Barthlow, CIV.A. RWT-07-662, 2007 WL 5253983, at *2 (D.Md. Nov.
7, 2007) (“Individual liability is not contemplated under § 504
of the [Rehabilitation Act].”).
Accordingly, the Rehabilitation
Act claim against Secretary Abed in his personal capacity cannot
proceed.
III. Conclusion
For the foregoing reasons, the motion for leave to amend
the complaint filed by Plaintiff will be granted in part and
denied in part.
He will be permitted to file a Second Amended
Complaint within fourteen (14) days, limited as stated in this
Memorandum Opinion.
Specifically, Plaintiff will be allowed to
plead an ADA claim only against Secretary Abed in his official
capacity
and
for
prospective
equitable
23
relief
only
-
not
compensatory damages - for acts that occurred between June 15,
2011 and April 10, 2012.
plead
a
damages
Rehabilitation
and
Department
of
prospective
Juvenile
official capacity.
Plaintiff will also be permitted to
Act
claim,
seeking
both
equitable
relief
from
Services
or
Secretary
compensatory
either
Abed
in
the
his
Accordingly, Defendant’s motion to dismiss
the amended complaint will be denied as moot.
A separate order
will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
24
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