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holding that "the fact that an unacceptable situation has been tolerated does not mean that the accommodation that has been made is reasonable"
Summary of this case from Moore v. Wal-Mart Stores E., LPOpinion
Civil Nos. JFM-99-3444, Civil No. JFM-00-1949.
May 18, 2001
MEMORANDUM
Pro se plaintiff Brooks P. Jones has brought two related actions against defendant Baltimore County for discrimination. In the first action, Jones claims disability discrimination under the Americans With Disabilities Act ("ADA"). In the second action, Jones claims discriminatory retaliation under Title VII. In both actions, Baltimore County has moved for summary judgment. The motions will be granted.
Jones has filed a surreply memorandum in Civil No. 99-3444 without having filed a request for leave to do so. Although the surreply was filed in violation of the Local Rules, I will consider it in light of plaintiff's pro se status. In any event, it does not affect my decision.
I. A.
Jones worked for Baltimore County as a "Storekeeper II" in the Electronic Services and Telecommunications ("EST") unit. The storeroom contained electronic equipment used by Baltimore County employees. The duties of the Storekeeper II position held by Jones, as set forth in the position description, were as follows:
Is responsible for the operation of a storeroom. Receives, stores, and issues a complex variety of materials, tools, supplies, and equipment. Prepares items for distribution to users or other locations and departments. Keeps records of items received and issues. Locates available sources of supply. Coordinates stock requirements. Orders various items not on contract and purchases tools as needed. Expedites overdue orders. Processes warranty claims. Codifies all items according to IBM classifications. Makes County charge plates. Maintains records and files. Performs other related clerical duties.
Jones's work evaluations for the period 1986 through 1996 reflect that he was performing his work satisfactorily. His performance was consistently ranked as "Good" in six annually evaluated categories. He received only one rating of "Needs Improvement" while receiving numerous "Very Good" ratings. The narrative comments about him were positive. Throughout this period, he was under a medical restriction not to lift items of over 30 pounds.
Neither party has submitted Jones's work evaluations for 1997 or 1998.
B.
The restriction on Jones's activities was prompted by the fact that he has medical problems caused by diabetes and heart disease. Over the years he had frequent diabetic reactions. William H. Bond, who served as the Director of the Office of Information Technology for Baltimore County from July 1995 to December 1998, has stated by affidavit:
It is my recollection that Mr. Jones had multiple medical problems. He had problems associated with his heart. When he would do any kind of lifting, this would increase his heart palpitations and also his breathing. He also had a problem with his diabetes. If he did not take his medication properly, or let his general health deteriorate, his diabetes would get a hold of him. On these occasions the Electronic Services management would have to sit him down so that he could recuperate and get his strength back. He almost passed out a couple of times relative at the workplace due to these conditions.
According to another affidavit submitted by Charles C. Dennis, who served as an assistant chief of EST since 1986, and is presently the chief of the unit, Jones's incidents of diabetic reaction "became progressively more severe until early 1998, when Mr. Jones actually suffered congestive heart failure on the job. Mr. Jones started sweating profusely, his pulse was weak, his skin color changed to an ashen gray, and he was having trouble breathing. I instructed someone to call 911. Mr. Jones was removed from the premises by Baltimore County medics."
After this incident occurred, Dennis consulted with Bond and had Jones sit at a desk in the storeroom where either Dennis or someone else in the shop could constantly keep an eye on him so that the medics could be contacted as soon as he showed any signs of having another attack. Dennis also requested that an independent medical evaluation be conducted by Dr. Festo Mlela, a physician under contract with Baltimore County. Dr. Mlela concluded that Jones could not "perform his duties in a safe, consistent and reliable manner." In reaching this conclusion, Dr. Mlela relied in part upon the opinions of one of Jones's own physicians, Dr. Mahmood Alikhan. By a letter dated March 26, 1998, Dr. Alikhan had recommended that Jones avoid any physical activity, especially isometrics, and that he not lift over twenty-five pounds. He also had strongly recommended to Jones that he take disability retirement, as reflected in a letter he wrote to Carl Friedman, another of Jones's doctors on March 31, 1998. Dr. Alikhan added, however, that "this does not seem to fit into Jones's life plans at the present time."
Dennis and Bond also attempted to find another suitable position for Jones. These attempts were unsuccessful. Jones was unqualified for one of the positions, and he rejected another because it entailed shift work, would have resulted in a reduction in pay, and would have presented substantial transportation difficulties for him.
On or about July 1, 1998, Jones was orally advised that the County had decided that he would have to take a leave of absence, retire, or resign. On July 6, 1998, Jones "intercepted" a fax from Bond to his supervisors confirming that advice. Jones immediately thereafter telephoned the EEOC about his situation. On August 21, he filed a written complaint with the EEOC, alleging that the County had discriminated against him by refusing to "redline" his salary, that is to offer him a position scheduled lower than the Storekeeper II position at the same salary level he had previously been earning. On September 1, Jones wrote a letter to Antony J. Sharbaugh, the Director of Baltimore County's Office of Personnel, in which he declined the proposed offer of another position at a lesser salary and, in a handwritten postscript, indicated that he had filed charges with the EEOC.
Jones has continued to assert in these actions that he was discriminated against because the County did not redline his position. The record establishes, however, that the County has redlined positions only when employees have been demoted as the result of a reorganization, a situation not present here.
On the same day, in response to a faxed copy of Jones's letter, Bond wrote to Jones. Bond stated that "[y]our personal physicians and those physicians under contract to Baltimore County, all agree that with your current medical problems you do not have the capacity to perform the duties of Storekeeper II . . . . You can not remain employed in Baltimore County in the position of Storekeeper II . . . . You could be transferred to some other position in Baltimore County that did not require lifting, carrying, etc. and was more sedentary in nature." Bond went on to say that it was incumbent upon Jones to pursue other positions with the County, including a position as a clerk with the Police Department's criminal records division for which the County had suggested he apply. On September 10, at the apparent urging of Jones, Dr. Alikhan and Dr. Friedman (Jones's personal physicians) wrote letters stating that they would approve him maintaining his job as Storekeeper II if he were given an accommodation not to lift packages weighing over 25 pounds.
C.
Things apparently remained at a standstill for several months. In December, 1998, the County's Office of Budget and Finance took over from the Office of Information Technology operational responsibility for EST, the unit in which Jones worked. Fred Holman is the director of the Office of Budget and Finance. He familiarized himself with the operations of the storeroom of EST and discovered that for many years the operations had been allowed to be conducted in a manner not in accordance with Generally Accepted Accounting Principles ("GAAP"). Specifically, he learned that the storeroom was open and that any employee could walk in and retrieve items for themselves. Holman was concerned, as he has stated in an affidavit, "that this complete lack of security would possibly result in theft of valuable County electronic equipment and a lack of inventory control."
Holman sought to correct this problem, as he perceived it was his duty to do. He learned of Jones's medical problems and reviewed Jones's medical records. He concluded that Jones could not perform his job responsibilities as GAAP required them to be performed. He refused to accommodate a request made by Jones that Jones be permitted to continue in his position. He found Jones's proposed solution — that at any time any object weighing over 25 pounds needed to be lifted, he obtain assistance from the person requesting the item from the storeroom or electronic technicians or clerks working in an adjacent office — to be unrealistic and unreasonable.
After the Office and Budget and Finance assumed control over the operations of EST, a third County position was identified for which Jones could apply. He declined to interview for the position, presumably because it would have resulted in a reduction of pay. On February 1, 1999, Holman, as he was authorized to do under the Baltimore County Code, submitted a letter on behalf of Jones, stating that he believed that it was in the interest both of Jones and the County for Jones to be considered for an ordinary disability retirement. Holman also submitted an application for disability retirement on Jones's behalf. On February 17, three physicians of the County's Medical Board reported to the Board of Trustees of the Retirement System for Baltimore County that "Jones was physically incapacitated for the further performance of duty" and his incapacity was permanent. On April 6, Jones signed his application for disability retirement. The application was accepted. Jones is now employed as an international buyer/exporter by a private firm at a salary substantially higher than his salary with Baltimore County.
II. A.
The ADA "prohibits certain employers from discriminating against individuals on the basis of their disabilities." Sutton v. United Airlines, Inc., 527 U.S. 471, 475 (1999). The ADA defines a "disability" as, inter alia, "a physical or mental impairment that substantially limits one or more . . . major life activities," 42 U.S.C. § 12101 (2)(A), or as "being regarded as having such an impairment," § 12102(2)(C). Under the presumptively applicable regulations, "working" is a "major life activity." 29 C.F.R. § 1630.2(i). The same regulations further provide that:
Baltimore County has not attacked the validity of the regulations issued by the EEOC to implement the ADA. Therefore, I will assume their validity. Cf. Sutton, 527 U.S. at 480.
With respect to the major life activity of working — [t]he term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limited in the major life activity of working.
§ 1630.2(l)(3)(i).
Jones has not presented sufficient evidence to prove that he is "disabled" within the meaning of the Act and implementing regulations. The record clearly establishes that he is able to perform — and was regarded by Baltimore County as being able to perform — a broad range of clerical jobs. He was invited to apply for several such jobs by the County and, although he chose not to apply for them, he has found employment of a similar nature in the private sector. Jones's claim of disability focuses solely upon a single job that the County concluded he could not satisfactorily perform. The law of the Fourth Circuit is clear that "a plaintiff seeking to demonstrate a limitation in her ability to work must demonstrate that she is foreclosed generally from the opportunity to obtain the type of employment involved, not merely that she is incapable of satisfying the singular demands of a particular job." Hooven-Lewis v. Caldera, 2001 WL 460753, at *8 (4th Cir. 2001) (internal citation omitted). Of course, the County would also have regarded him as not being able to perform any other clerical job that required Jones to lift items of over 25 pounds since his doctors imposed that restriction. Jones has cited no authority, however, to support the proposition that clerical jobs involving lifting items of over 25 pounds constitute "either a class of jobs or a broad range of jobs in various classes" within the meaning of 29 C.F.R. § 1630.2(l)(3)(i). Indeed, the Fourth Circuit has held to the contrary. See Williams v. Channel Master Satellite System, Inc., 101 F.3d 346, 349 (4th Cir. 1996).
B.
Even assuming that Jones has presented a genuine issue of material fact on the question of whether he is disabled, his ADA claim fails because he has not established, as required by 42 U.S.C. § 12111, that he is a "qualified individual with a disability." Under § 12111(a) the term "qualified individual with a disability" means "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." Jones is not a "qualified individual with a disability" because he cannot perform one of the essential functions of his position, that is engaging in physical activity and lifting items of over 25 pounds. See Myers v. Hose, 50 F.3d 278, 282 (4th Cir. 1995); Tyndall v. National Educ. Centers, Inc., 31 F.3d 209, 212-14 (4th Cir. 1994); Champ v. Baltimore County, 884 F. Supp. 991 (D.Md. 1995), aff'd, 91 F.3d 129 (4th Cir. 1996).
Although acknowledging, as he must in light of the medical restriction imposed by his doctors, that he cannot lift items weighing over 25 pounds, Jones contends that Baltimore County should have accommodated him by having other persons assist him whenever an item of that weight needed to be lifted. He correctly points out that from 1986 through the time that he was terminated from the Storekeeper II position he was working under a medical restriction not to lift items weighing over 30 pounds. While relevant, that history is not conclusive. The fact that an unacceptable situation has been tolerated does not mean that the accommodation that has been made is reasonable. Business (public or private) must be soundly managed, and lax employment practices need not be continued in perpetuity. Here, when the Office of Budget and Finance took over operational responsibility for the EST unit, Holman properly insisted upon bringing the operations of the unit into compliance with GAAP. Holman certainly was not unreasonable in concluding that it is inconsistent with GAAP for allowing someone other than the storekeeper to enter the secured area whenever an item over 25 pounds needed to be lifted. Moreover, it is entirely inconsistent with sound management to require — as Jones's proposed "reasonable accommodation" would do — other employees, specifically electronic technicians or clerical personnel in an adjacent office, to assist the storekeeper whenever an item weighing over 25 pounds must be lifted. Though these occasions may be somewhat infrequent, their timing cannot be predicted and when they do occur, they may well cause work disruption. A reasonable employee need not accept such disruption as an ordinary condition of the workplace.
Judge Nickerson, to whom this case was then assigned, relied heavily upon this fact in denying a motion to dismiss filed by Baltimore County. The record is now more complete than it was before Judge Nickerson on the motion to dismiss.
Jones notes that since the Office of Budget and Finance took over operational responsibility for the EST unit, the store is now open only 8 hours a day (as opposed to 24 hours as it was before) and that during the 16 hours his successor in the Storekeeper II position is not present, items are obtained from the store by outsiders. While this is true, the interests of security and inventory control are served on such occasions by the requirements that a supervisor accompany the employee retrieving an item from the store. Indeed, Holman could reasonably perceive in assessing Jones's fitness for the Storekeeper II job that the true significance of the change of hours that the store is open is that it provides an incentive for employees and their supervisors to retrieve equipment from the store during the hours that it is open. This necessarily would increase the amount of time that the storekeeper must lift items off the shelves.
Jones cites several occasions on which other employees have assisted his successor when large shipments of equipment have been delivered that must be transferred to the store. Self-evidently, these occasions are different from daily occurrences when an electronic technician or a member of a clerical staff must be called upon to assist the storekeeper in responding to a routine request.
III.
Jones's retaliation claim fails for three reasons.First, the claim is untimely. Baltimore County previously moved to dismiss on this ground but I denied the motion on the ground that the fact that Jones had been hospitalized shortly before the expiration of the 90 day period for him to file suit provided a sufficient basis for equitable tolling. In its motion for summary judgment, the County has requested that I reconsider my ruling in light of additional facts developed during Jones's deposition. The County's position is well founded. On deposition Jones testified that he had the suit papers prepared long before he was hospitalized but delayed filing suit until it was more convenient for him to pay the $150 filing fee. He had two days to file the suit after he was released from the hospital. Under these circumstances I decline to find equitable tolling.
Second, the only cognizable adverse action that Jones has identified as a basis for his retaliation claim is the termination of his employment as a Storekeeper II. For the reasons previously stated, the record establishes that the County was entirely justified in the action it took.
Third, on the summary judgment record, Jones has not met his burden of proving a causative link between his filing of an EEOC charge and the action taken against him. Holman, who took the action, has filed an affidavit stating in unequivocal terms that he was not aware that Jones has filed an EEOC charge when he filed an application for disability retirement on Jones's behalf. Such knowledge is a necessary component of a retaliation claim. Gibson v. Old Town Trolley Tours, 160 F.3d 177, 181 (4th Cir. 1998); Dowe v. Total Action Against Poverty, 145 F.3d 653, 657 (4th Cir. 1998). Moreover, if (Holman's affidavit to the contrary notwithstanding) it could be inferred from the handwritten postscript that Jones placed on his September 1, 1998 letter that Holman did have knowledge of Jones's EEOC charge, the record is clear that the same considerations that led to Holman making his final decision had pointed inexorably to the County's termination of Jones as a Storekeeper II before Jones had filed his EEOC charge. Indeed, it was Jones's "interception" of a July 6, 1998 fax from Bond to plaintiff's supervisors that led Jones to file his charge.
For these reasons Baltimore County's motion for summary judgment will be granted. A separate order to that effect is being entered herewith.
ORDER
For the reasons stated in the accompanying memorandum, it is, this 18th day of May 2001.
ORDERED
1. Defendant's motion for summary judgment is granted; and
2. Judgment is entered in favor of defendant against plaintiff.
/s/ J. Frederick Motz, United States District Judge