Opinion
Civil No. JFM-06-2336.
February 19, 2008
MEMORANDUM
Plaintiff has brought this pro se action for employment discrimination against her former employer, Montgomery County Public Schools. Plaintiff claims that the termination of her employment as a special education instructional assistant constituted disability discrimination and retaliation. Defendant has filed a motion for summary judgment to which plaintiff has filed an opposition. Defendant's motion will be granted.
Plaintiff asserts claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), the Americans With Disabilities Act of 1990 ("ADA"), and the Rehabilitation Act of 1973. Title VII prohibits unlawful discrimination on the basis of "race, color, religion, sex, or natural origin," 42 U.S.C. § 2000e-2(a), and therefore does not give rise to a claim for disability discrimination or retaliation arising from disability discrimination. See Houck v. City of Prairie Vill., Kansas, 912 F. Supp. 1428, 1434 (D. Kan. 1996), aff'd, 1998 WL 826825 (10th Cir. Dec. 1, 1998). Likewise, plaintiff has no viable claim under the ADA. County boards of education of Maryland are state agencies for Eleventh Amendment purposes, see McNulty v. Bd. of Educ. of Calvert County, 2004 WL 1554401, at *4 (D. Md. Jul. 8, 2004), Lewis v. Bd. of Educ. of Talbot County, 262 F. Supp. 2d 608, 612 (D. Md. 2003), and the Supreme Court has held that the Eleventh Amendment bars private suits against states and their agencies for monetary damages under Title I of the ADA. Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 361 (2001).
Plaintiff's claims fail for three reasons that can be briefly stated.
To the extent that plaintiff's disability claim is based upon a suggestion that she was not reasonably accommodated, the claim fails for the additional reason that the record establishes that defendant provided reasonable accommodation to plaintiff by minimizing the amount of lifting and bending she was required to do.
First, as to her discharge claim, plaintiff is unable to meet her burden of proving that at the time of her discharge, she was performing her job at a level that met defendant's legitimate expectations. See Mayers v. Wash. Adventist Hosp., 131 F. Supp. 2d 743, 748 (D. Md. 2001) (quoting Ennis v. Nat'l Ass'n of Bus. and Educ. Radio, Inc., 53 F. 3d 55, 59 (4th Cir. 1995)). The record establishes that throughout her employment, (1) plaintiff was late for work, left early, or was absent, (2) plaintiff (despite being instructed not to do so) discussed personal issues while on the job, and (3) plaintiff did not get along with her colleagues. Plaintiff was warned about these failings on many occasions but nevertheless failed to rectify them. Moreover, on at least two occasions plaintiff failed to ensure the safety of students for which she was responsible when they were being put on school buses. Plaintiff's only response to defendant's contention that her job performance was unprofessional and unacceptable is that in her own view she was a competent employee. This response is insufficient because "[i]t is the perception of the decision maker which is relevant, not the self-assessment of the plaintiff." Evans v. Techs. Applications Serv. Co., 80 F.3d 954, 960-61 (4th Cir. 1996); King v. Rumsfeld, 328 F.3d 145, 149 (4th Cir. 2003); DeJarnette v. Corning, Inc., 133 F.3d 293, 299 (4th Cir. 1998).
Second, as to her retaliation claim, a plaintiff must establish, inter alia, that she was discriminated against because she engaged in a protected activity. The filing of a worker's compensation claim is not an activity that is protected under federal law. See Yanke v. Mueller Die Cut Solutions, Inc., 2007 WL 437694, at *9 (W.D.N.C. Feb. 5, 2007).
Third, as to her retaliation claim, plaintiff's employment was terminated approximately nine months after she filed her claim for worker's compensation benefits. This long "lag" in time negates any inference of causation. See Hooven-Lewis v. Caldera, 249 F.3d 259, 278 (4th Cir. 2001).
A separate order granting defendant's motion and entering summary judgment on its behalf is being entered herewith.
ORDER
For the reasons stated in the accompanying memorandum, it is, this 19th day of February, 2008
ORDERED
1. Defendant's motion for summary judgment is granted; and
2. Judgment is entered in favor of defendant against plaintiff.