Wilson v. City of Gaithersburg
MEMORANDUM AND ORDER granting in part and denying in part 11 MOTION to Dismiss for Failure to State a Claim or, alternatively, MOTION for Summary Judgment. Signed by Judge Paul W. Grimm on 8/3/2015. (C/M 8/3/2015aos, Deputy Clerk) Modified on 8/3/2015 (aos, Deputy Clerk).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MARK J. WILSON,
Case No.: PWG-14-2317
CITY OF GAITHERSBURG,
MEMORANDUM AND ORDER
Plaintiff Mark J. Wilson filed suit, pro se, against Defendant City of Gaithersburg (“the
City”), alleging that he was discriminated against in violation of the Americans with Disabilities
Act (“ADA”), 42 U.S.C. §§ 12112–12213, when he was terminated for requesting an
accommodation for his disability. Compl., ECF No. 1; see Civil Cover Sheet § VI, ECF No. 1-2.
Defendant has moved to dismiss Plaintiff’s hostile work environment and failure to
accommodate claims for failure to state a claim and for summary judgment on Plaintiff’s
retaliation claim, ECF No. 11.1 Def.’s Mem. 1. Because Plaintiff has stated a claim for failure to
accommodate but not hostile work environment, Defendant’s motion to dismiss will be granted
in part and denied in part. Because Plaintiff has failed to establish a prima facie case of
retaliation, Defendant’s motion for summary judgment will be granted as to that claim.
Defendant identifies these three claims in Plaintiff’s Complaint, which does not have separately
numbered counts, and Plaintiff does not contest this characterization. Defendant presents its
motion as one to dismiss or, in the alternative, for summary judgment, but Defendant seeks
dismissal of the hostile work environment and failure to accommodate claims and summary
judgment on the retaliation claim. The parties fully briefed the motion. See ECF Nos. 11-1, 15,
16. A hearing is not necessary. See Loc. R. 105.6.
For the purposes of resolving the City’s motion to dismiss, I accept as true the following
facts alleged in Plaintiff’s Complaint. See Aziz v. Alcolac, 658 F.3d 388, 390 (4th Cir. 2011).
Plaintiff worked as a Project Manager in the Facilities Management Division of the City’s
Department of Public Works and Engineering (“DPW”) for eight years. Compl. ¶¶ 1, 5, ECF No.
1. He “has several disabilities,” including “ADHD [attention-deficit/hyperactivity disorder],” for
which he takes an “antidepressant” that has caused him to take “several days to recover” from “a
perceived threat or attack,” during which time his “work and health at home” were affected and
he experienced “bouts of anxiety and depression.” Id.
Thus, when Plaintiff’s
supervisor, Peter Geiling, “threaten[ed] others and rant[ed] in Wilson[’s] presence in Winter and
Spring 2009 and again in Spring 2010, these “several episodes . . . rattle[d] Wilson.” Id. ¶¶ 20–
21. He “confronted his Boss in writing” in 2009 and then “file[d] a work place compliant [sic]”
in Spring 2010. Id. On May 6, 2010, Wilson received “a letter from the [City] Attorney stating
that the City’s third party investigator had ruled that Wilson’s boss’s behavior toward Wilson
several months ago did not create a hostile work environment, but was characterized as just
Geiling’s ‘management style.’” Id. ¶ 2.
Wilson was informed on May 7, 2010 that he was terminated, but would be paid through
June 30, 2010. Compl. ¶¶ 1, 5, 7. The City informed him that DPW “did not need him as a
project manager in the Facility Department and would use his wages to create a new position in
the Engineering Services Department for a project manager working with storm water
infrastructure.” Id. ¶ 5. Yet, as Plaintiff reads them, the City’s budget records “state that
Wilson[’s] position was not eliminated after Wilson was terminated in May 2010,” and “the new
Project Manager position for working with storm water infrastructure did not exist after Wilson’s
termination and the next year after that.” Id. ¶¶ 13–14.
For purposes of Defendant’s motion for summary judgment on Plaintiff’s retaliation
claim, I consider the facts in the light most favorable to Plaintiff as the nonmovant, drawing all
justifiable inferences in that party’s favor. Ricci v. DeStefano, 557 U.S. 557, 585–86 (2009);
George & Co., LLC v. Imagination Entm’t Ltd., 575 F.3d 383, 391–92 (4th Cir. 2009). Although
the events described above are undisputed, the documentary evidence establishes a different
timeframe for the relevant events: Plaintiff voiced complaints about his supervisor’s behavior on
January 7, 2011 and February 7, 2011. James Arnoult Aff. ¶¶ 14–15, Def.’s Mem. Ex. 1, ECF
No. 11-3 (affidavit of Director of the Department of Public Works and Engineering for the City);
Jan. 7, 2011 Ltr. from Steven B. Israel, M.D., Def.’s Mem. Ex. 2, ECF No. 11-4 (stating that
Plaintiff needed “to take time off” for “an exacerbation of his illness”); Feb. 7, 2011 WorkRelated Illness Report, Def.’s Mem. Ex. 4, ECF No. 11-6. The City notified Plaintiff on May 4,
2011 that it had hired an outside attorney to investigate Plaintiff’s allegations of a hostile work
environment and concluded, based on the attorney’s report, that Plaintiff simply described a
“management style” and not a hostile work environment for which the City needed to take
corrective action. May 4, 2011 Mem. to Wilson, Def.’s Mem. Ex. 5, ECF No. 14-1. The City
informed Plaintiff on May 10, 2011 that his employment would end that day, although he would
be paid through the end of June 2011. May 10, 2011 Mem. to Wilson, Def.’s Mem. Ex. 6, ECF
No. 11-7; see Pl.’s Aff. ¶ 9, Pl.’s Opp’n Ex. F, ECF No. 15-8 (referring to May 7, 2011 notice of
STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 12(b)(6), this Court may dismiss a claim or
complaint if it fails to state a claim upon which relief can be granted. Tucker v. Specialized Loan
Servicing, LLC, ---- F. Supp. 3d ----, 2015 WL 452285, at *8 (D. Md. Feb. 3, 2015). In resolving
a Rule 12(b)(6) motion, the Court bears in mind the requirements of Rule 8, Bell Atlantic Corp.
v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Specifically, a
complaint must contain “a short and plain statement of the claim showing that the pleader is
entitled to relief,” Fed. R. Civ. P. 8(a)(2), and must state “a plausible claim for relief,” as
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice,” Iqbal, 556 U.S. at 678–79. See Velencia v. Drezhlo, No. RDB-12237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012) (discussing standard from Iqbal and
Twombly). “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678.
Plaintiff is proceeding pro se, and his Complaint is to be construed liberally. See Haines
v. Kerner, 404 U.S. 519, 520 (1972). However, liberal construction does not absolve Plaintiff
from pleading a plausible claim. See Holsey v. Collins, 90 F.R.D. 122, 128 (D. Md. 1981) (citing
Inmates v. Owens, 561 F.2d 560, 562–63 (4th Cir. 1977)).
It is neither unfair nor unreasonable to require a pleader to put his
complaint in an intelligible, coherent, and manageable form, and his failure to do
so may warrant dismissal. District courts are not required to be mind readers, or to
conjure questions not squarely presented to them.
Harris v. Angliker, 955 F.2d 41, 1992 WL 21375, at * 1 (4th Cir. 1992) (per curiam) (internal
Summary judgment is proper when the moving party demonstrates, through “particular
parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or
other materials,” that “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a), (c)(1)(A); see Baldwin v. City of
Greensboro, 714 F.3d 828, 833 (4th Cir. 2013).
If the party seeking summary judgment
demonstrates that there is no evidence to support the nonmoving party’s case, the burden shifts to
the nonmoving party to identify evidence that shows that a genuine dispute exists as to material
See Celotex v. Catrett, 477 U.S. 317 (1986).
When considering cross-motions for
summary judgment, “the court must view each motion in a light most favorable to the nonmovant.” Linzer v. Sebelius, No. AW-07-597, 2009 WL 2778269, at *4 (D. Md. Aug. 28, 2009);
see Mellen v. Bunting, 327 F.3d 355, 363 (4th Cir. 2003).
A. Hostile Work Environment
Defendant urges dismissal of Plaintiff’s hostile work environment claim for “failure to
adequately allege the existence of a disability”; failure to allege at all “that Mr. Wilson himself
was subjected to unwelcome harassment”; and failure to show that the “workplace environment
was both subjectively and objectively hostile.” Def.’s Mem. 10–11. It does not appear in
Plaintiff’s Complaint that he seeks to bring a claim for hostile work environment, yet it bears
mention that Plaintiff states in his Opposition that “the actions of his supervisor Pete Geiling”
created “a hostile environment.” Pl.’s Opp’n 14. Plaintiff defines “hostile environment” as “‘an
environment unfavorable to health or well-being.’” Id. (quoting Pl.’s Aff. ¶ 20).
Yet, hostile environment in the context of ADA claims is a term of art. To state a claim
for hostile work environment, Plaintiff must allege
(1) he is a qualified individual with a disability; (2) he was subjected to
unwelcome 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 liability for
the harassment to the employer.”
Fox v. Gen. Motors Corp., 247 F.3d 169, 177 (4th Cir. 2001). Plaintiff does not allege that he
“was subjected to unwelcome harassment.” See id. Rather, he claims that his supervisor
“threaten[ed] others and rant[ed] in Wilson[’s] presence,” which “rattle[d] Wilson,” and at one
time “rattled Wilson so much that his Doctor issued a two week medical leave and proscribed
[sic] medication to restore Wilson’s mental health back.” Compl. ¶¶ 20–22 (emphasis added).
He “confronted his Boss in writing about it, and told him to stop this behavior because it was
affecting Wilson’s work.” Id. ¶ 21. These allegations do not demonstrate that his supervisor’s
behavior was directed at him.
Additionally, to plead that the environment is “sufficiently severe or pervasive,” Plaintiff
must allege “not only that he subjectively perceived his workplace environment as hostile, but
also that a reasonable person would so perceive it, i.e., that it was objectively hostile.” Fox, 247
F.3d at 178. To determine whether an environment is objectively hostile, the Court considers
“‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee’s work performance.’” Id. (quoting Walton v. Mental Health Ass’n, 168 F.3d 661, 667
(3d Cir. 1999) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993))). Plaintiff claims
that his supervisor’s “ranting” interfered with his ability to work, but he has not alleged that it
happened frequently. Further, he has not claimed that the “ranting” against other people was
either “physically threatening or humiliating” for him as someone who was not the subject of the
rants. Plaintiff’s allegations are insufficient to state a claim for hostile work environment under
the ADA. See id.; Iqbal, 556 U.S. at 678–79. Defendant’s motion to dismiss is granted as to
Plaintiff’s hostile work environment claim. See Fed. R. Civ. P. 12(b)(6).
B. Failure to Accommodate
To state a claim for failure to accommodate under the ADA, Plaintiff must allege “(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 accommodation he could
perform the essential functions of the position . . . ; and (4) that the [employer] refused to make
such accommodations.” Rhoads v. F.D.I.C., 257 F.3d 373, 387 n.11 (4th Cir. 2001) (citation
omitted). Defendant argues for dismissal solely on the basis that Plaintiff “has not properly
alleged that he is disabled under the ADA.” Def.’s Mem. 12.
The relevant ADA definition of disability is “a physical or mental impairment that
substantially limits one or more major life activities.”
42 U.S.C. § 12102(1).
identifies “concentrating, thinking, communicating, and working” among other “major life
activities.” 42 U.S.C. § 12102(2); see Pisani v. Baltimore City Police, No. WDQ–12–1654, 2013
WL 4176956, at *7 (D. Md. Aug. 14, 2013) (quoting 42 U.S.C. § 12102(2)).
An impairment “substantially limits” one of these activities if the plaintiff is
“‘significantly restricted’” in that activity. White v. Home Depot, U.S.A., Inc., No.
DKC–13–624, 2013 WL 4501328, at *3 (D. Md. Aug. 21, 2013) (quoting Pollard
v. High’s of Baltimore, Inc., 281 F.3d 462, 467 (4th Cir. 2002)); see 29 C.F.R.
§ 1630.2(j)(1). “‘[I]n determining whether an impairment is substantially limiting,
courts may consider the “nature and severity of the impairment,” the “duration or
expected duration of the impairment,” and the “permanent or long term impact”
of the impairment.’” White, 2013 WL 4501328, at *3 (quoting Pollard, 281 F.3d
at 467–68 (quoting 29 C.F.R. § 1630.2(j)(2))).
Wonasue v. Univ. of Md. Alumni Ass’n, 984 F. Supp. 2d 480, 488 (D. Md. 2013). Plaintiff claims
that he “has several disabilities,” including “ADHD [attention-deficit/hyperactivity disorder],”
for which he takes an “antidepressant” that has caused him to take “several days to recover” from
“a perceived threat or attack,” during which time his “work and health at home” were affected
and he experienced “bouts of anxiety and depression.” Compl. ¶¶ 27–28. Stated differently, he
has alleged “a physical or mental impairment” (ADHD) that “substantially limits” (by requiring
medication that prevents him from working under certain recurring circumstances, that is, when
his supervisor is “ranting”) a “major life activit[y]” (work). See 42 U.S.C. § 12102(1); Wonasue,
984 F. Supp. 2d at 488. Thus, he adequately alleged that he has a disability within the meaning
of the statute. See Rhoads, 257 F.3d at 387 n.11. Defendant’s motion to dismiss is denied as to
Plaintiff’s failure to accommodate claim. See Iqbal, 556 U.S. at 678–79; Fed. R. Civ. P. 12(b)(6).
“[U]nder the burden-shifting method of proof, to establish a prima facie case of
retaliation, a plaintiff must show that: (1) he engaged in a protected activity; (2) [his] employer
acted adversely against [him]; and (3) [his] protected activity was causally connected to [his]
employer’s adverse action.” Rhoads, 257 F.3d at 392. According to Defendant, the causal
relationship must be one of “but-for causation,” that is, the employer would not have taken the
adverse employment action against the plaintiff if the employer were not trying to retaliate
against the plaintiff for engaging in a protected activity. Def.’s Mem. 12 (citing Univ. of Texas
Sw. Med. Ctr. v. Nassar, ---- U.S. ----, 133 S. Ct. 2517, 2528 (2013) (discussing Title VII
standard)). Defendant notes, id., that the Fourth Circuit applied the “but-for” standard to an
ADA case in Staley v. Gruenberg, 575 F. App’x 153, 155 (4th Cir. 2014), and Defendant lists
cases in other jurisdictions where courts have done the same. But, Staley is an unreported
opinion, and neither Defendant nor my independent research has identified any binding
precedent for applying this standard.
Regardless, Plaintiff has failed to establish the third element. The undisputed evidence
establishes that Plaintiff voiced complaints about his supervisor’s behavior on January 7, 2011
and February 7, 2011. Arnoult Aff. ¶¶ 14–15. The City informed Plaintiff on May 10, 2011 that
his employment would end that day, although he would be paid through the end of June 2011.
May 10, 2011 Mem. to Wilson. Thus, more than three months passed between Plaintiff’s last
protected action and the termination of his employment, too long a period for Plaintiff to
establish a causal relationship on temporal proximity alone. See Clark Cnty. Sch. Dist. v.
Breeden, 532 U.S. 268, 273 (2001) (“The cases that accept mere temporal proximity between an
employer’s knowledge of protected activity and an adverse employment action as sufficient
evidence of causality to establish a prima facie case uniformly hold that the temporal proximity
must be ‘very close.’”) (citation omitted); Horne v. Reznick Fedder & Silverman, 154 F. App’x
361, 364 (4th Cir. 2005) (holding that “[t]he district court correctly concluded that Horne failed
to produce sufficient evidence of such a causal connection” where “Horne’s only evidence of
causation is that she was fired two months after she accused Anderson of discrimination,”
because “a lapse of two months between the protected activity and the adverse action is
‘sufficiently long so as to weaken significantly the inference of causation’” (quoting King v.
Rumsfeld, 328 F.3d 145, 151 n.5 (4th Cir. 2003)); Westmoreland v. Prince George's County,
Md., 876 F. Supp. 2d 594, 607–08 (D. Md. 2012) (“Although there is no bright-line rule on the
issue of temporal proximity, the Fourth Circuit has held that a lapse of over three months
between the protected activity and the alleged retaliation is too long to give rise to an inference
Of course, temporal proximity is not a plaintiff’s only means of showing a causal
connection. Lettieri v. Equant Inc., 478 F.3d 640, 650 (4th Cir. 2007); Foster v. Univ. of Md. E.
Shore, 908 F. Supp. 2d 686, 706–07 (D. Md. 2012). A court “‘may look to the intervening period
for other evidence of retaliatory animus’ which ‘may be used to establish causation.’”
Westmoreland, 876 F. Supp. 2d at 607–08 (quoting Lettieri, 478 F.3d at 650). But, Plaintiff does
not offer any such evidence.2 Therefore, Plaintiff has failed to establish a prima facie case of
retaliation. See Rhoads, 257 F.3d at 392. Defendant is entitled to summary judgment on this
claim. See Fed. R. Civ. P. 56(a).
Accordingly, it is, this 3rd day of August, 2015, hereby ORDERED that
1. Defendant’s Motion to Dismiss or, Alternatively, for Summary Judgment, ECF No.
11, IS GRANTED IN PART and DENIED IN PART, as follows:
Plaintiff makes much of the fact that the City’s budget reports still listed his position in the
following fiscal year, and the new position was not filled promptly. Compl. ¶¶ 13–14; Pl.’s
Opp’n; see Pl.’s Opp’n Exs. A & H, ECF Nos. 15-3 & 15-10 (job postings printed in January
2012 and July 2012). But, neither occurred prior to Plaintiff’s termination. See Westmoreland,
876 F. Supp. 2d at 607–08. Moreover, while the budget reports Plaintiff attaches to his
Opposition list “1” employee next to Plaintiff’s position for “FY 12,” elsewhere they list “0”
employees for the same position for the same fiscal year, making it unclear whether his position
was eliminated that year. DPW Staffing Summaries, Pl.’s Opp’n Exs. C & D, ECF Nos. 15-5 &
15-6. Further, Defendant explained that, although “[a]fter Mr. Wilson was terminated, the City
began interviewing applicants for the position of Storm Water Management Coordinator,” none
of the initial interviewees were “suitable,” and then “efforts to fill the position . . . were put on
hold for several months while the City attempted to fill Mr. Geiling’s former position,” because
the individual hired for the new position “was going to have to work closely with the Capital
Projects and Facilities Director for the DPW, Mr. Geiling’s former position, and the City felt that
the new Capital Projects and Facilities Director should be involved in the hiring process for the
position of Storm Water Management Coordinator.” Arnoult Aff. ¶¶ 16–17. Plaintiff has not
refuted this evidence.
a. Defendant’s motion to dismiss Plaintiff’s hostile work environment claim IS
b. Plaintiff’s hostile work environment claim IS DISMISSED;
Defendant’s motion to dismiss Plaintiff’s failure to accommodate claim IS
d. Defendant’s motion for summary judgment on Plaintiff’s retaliation claim IS
2. This case shall proceed as to Plaintiff’s failure to accommodate claim only; and
3. The Clerk SHALL SEND a copy of the Memorandum and Order to Plaintiff.
I will enter a Case Management Order, Scheduling Order, and Discovery Order to govern
the remainder of the case.
Paul W. Grimm
United States District Judge
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