Opinion
Civ. No. DKC 97-3630.
September 1999.
MEMORANDUM OPINION
This is an employment discrimination action. Presently pending before the court is a Motion to Dismiss and for Summary Judgment filed by the Defendant, Montgomery County Public Schools ("MCPS"). The issues have been fully briefed. No hearing is deemed necessary, and the court now rules pursuant to Local Rule 105.6. For the reasons set forth below, summary judgment shall be granted in favor of Defendant on all claims.
I. Background
Plaintiff Kevin Parker, a black male, began working for MCPS in 1976 as a child care assistant. He was transferred to the position of special education aide in 1979, and in 1980 he was promoted to the position of safety and security assistant at John F. Kennedy High School. Throughout this period, Parker received several work performance evaluations. Some rated him an "above average" worker who maintained a "high quality of work," while others rated him an "average" worker whose quality of work was "acceptable." Several of the evaluations noted that Parker had a problem reporting to work on time, and one noted that Parker needed to improve his "human relations skills and initiative."
In 1983, Parker was granted academic leave for one year to pursue credits toward a Bachelor of Science degree at the University of Maryland. Under the terms of his academic leave, Parker was to complete 47 credit hours of coursework, receive sixty percent (60%) of his salary, and return to employment with MCPS for three years following the completion of his leave. Parker, however, completed only 21 credit hours while on leave. Despite Parker's failure to live up to the terms of his leave, MCPS reinstated Parker as a safety and security assistant in 1984. A performance evaluation completed shortly after Parker's return rated him "above average," noting his "high quality" and "unusually high output" of work. The evaluation also noted Parker's continuing attendance problems, indicating that Parker was absent from or late for work eight times over the course of two months. Nevertheless, in 1985, Parker was promoted to the position of Programmer Trainee in MCPS' Division of Systems Development ("DSD").
Approximately eight months after his promotion, in October 1985, Parker was involved in a motorcycle accident. He suffered a severe closed head injury and required 17 days in the intensive care unit. Plaintiff alleges that he began to suffer the following "sequelae" or symptoms of his injury shortly after the accident:
impairments in attention, concentration and memory; visual, auditory and time perception; and fatigability, and lowered tolerance for stress and noise.
Plaintiff further alleges that these impairments "periodically resulted in difficulties in: perceiving, managing and estimating time; oral communication; task initiation, organization and work flow; and extreme exhaustion, especially under stress." These allegations are supported by the report of a neuropsychologist who treated Parker following the injury.
Shortly after returning to work on a full time basis, in January 1986, Plaintiff was promoted to the position of Programmer within DSD. Parker's performance in his new position was evaluated by his supervisor, Milton Wilkerson, in February and July of 1996. Each evaluation indicated that Parker was doing an "average" job. His January 1987 evaluation also indicated "average" work performance, but noted that Parker's earlier problem with reporting to work on time had resurfaced. The "Remarks" section of the evaluation read:
Mr. Parker understands that his reporting time problem must be quickly resolved if he is to continue with his average evaluation. He will be a valuable employee when this problem is resolved.
Parker received another "average" evaluation in January 1988. This one noted that Parker "needs to pay more attention to due dates" and that he "tends to get involved in other employees' tasks which results in his tasks not being completed on schedule."
In July 1988 Parker was again promoted, this time to the position of Analyst/Programmer. According to his 1989 evaluations, given in January and July, Parker continued his "average" job performance. The evaluations also indicated that Parker had continued problems with reporting on time, meeting due dates, and staying focused on his own assignments. In July 1990, after Parker was transferred within DSD to work under the supervision of Leland Coldren in the School Support and Financial Systems Unit, he received another evaluation consistent with those previously given. His overall job performance was rated "average," but he was rated unsatisfactory in the "Reports on Time" category. The "Remarks" section read:
Mr. Parker's technical skills are very good. However, his work habits, attendance problems and interpersonal skills interfere with his productivity and team interactions.
The evaluation also noted that Parker had "excellent program analysis and design skills." Parker received another evaluation from Coldren in June 1991 that rated his performance "average" and noted no performance deficiencies.
There is no evidence that Parker, at any time during the period between 1986 and 1991, asserted that the alleged impairments resulting from his 1985 head trauma were the cause of his attendance problem and inability to stay on schedule with assignments. Nor is there any evidence that Parker requested accommodations that would have permitted him to correct these deficiencies in his work, or that the deficiencies resulted from a denial of requested accommodations.
MCPS employees are required to sign their evaluation forms to indicate they have participated in the evaluation. Just below the employee signature line a statement reads: "the employee signing this evaluation does not necessarily have to agree with the contents and may attach comments to this form." There is no evidence that Parker ever attempted to attach comments to his evaluations during this period.
Throughout the period following the 1985 accident, Parker continued his studies at the University of Maryland's University College, and in December 1989 earned a Bachelor of Science degree in Computer Information and Science. Parker graduated with a 3.591 grade point average and achieved four "A"s and one "B" in his last two semesters of school. In 1991, Parker was granted another period of academic leave to pursue a Masters Certification Program in education at the University of Maryland ("Masters Program"). Parker, however, was unable to complete the program as anticipated. In a May 1992 letter to Armando Guitierrez, Director of Personnel Services for MCPS, Parker explained the reason for his inability to succeed in the Masters Program:
Parker failed or received an incomplete in most of his courses.
[W]ritten expression activities have represented a major academic challenge throughout my academic studies. Prior to earning my undergraduate degree, I withdrew from two technical writing courses . . . and a listening course . . . that required extensive writing. In the summer of 1989, I received an incomplete in a writing course that represented my final undergraduate degree requirement. I did not complete the course until the end of the subsequent semester. Completing academic writing tasks has represented a life long challenge that I have found difficult to overcome, regardless of the motivation.
Parker did not in any way attribute his academic failure to the sequelae of his head injury. However, when MCPS notified Parker that it might seek to recover all or part of the salary paid to him while on leave, Parker produced a letter from his neuropsychologist, James Lamott, which stated that Parker's head injury "may have adversely impacted his academic leave studies."
In September 1992, Parker was reinstated as an Analyst/Programer in DSD. Parker claims that upon his return, his "DSD superiors did not continue the accommodations of holding regularly scheduled meetings with [him] and working cooperatively with his doctors or Employee Assistance Specialists to re-institute or develop and implement reasonable accommodations." However, there is no evidence that any special accommodations were ever requested or provided to Parker after his return to a full-time work schedule in January 1986. In fact, there is evidence to the contrary.
Although Parker frequently corresponded with his supervisors by letter and internal memoranda regarding all aspects of his employment at MCPS, Parker does not point to any letter or memorandum indicating that any such accommodations were requested or previously provided, except for a very brief period immediately following his 1985 accident.
Upon his return to DSD, Parker was assigned to a software conversion project under the supervision of Coldren. Parker objected to this assignment. He claims that Wilkerson, his first supervisor at DSD, had experience supervising conversion projects similar to the one Parker was assigned to, and that he would have preferred to work under Wilkerson. His request was denied.
Before beginning the conversion project, Parker and three other DSD employees were directed by Coldren to develop time estimates for completion of the conversion. Parker originally estimated that it would take 642 hours to complete the project. MCPS claims the estimates of the three other individuals averaged approximately 400 hours. Parker contends that he was "required" to reduce his estimate to 470 hours based on the estimates of the three other DSD staff members, who Parkers claims were unfamiliar with the complexity of the project.
The project Parker was assigned to involved converting a computer system from one type of software to another. The system, known as the Vehicle Parts Inventory System ("VPIS"), was the only MCPS computer system dependent upon certain IBM software known as CICS. MCPS paid IBM an annual license fee of $30,000 for the CICS software. The project was time sensitive because DSD had not budgeted to continue with the CICS software in the next fiscal year.
During the first few weeks after his return to DSD, Parker was counseled for leaving his work area without notifying anyone of his whereabouts, and for failing to adhere to the MCPS flextime guidelines requiring all employees to work certain core hours. In December 1992, Coldren learned that Parker was behind schedule on the conversion. As part of his inquiry into the reason for the delays, Coldren compared the hours of work listed in Parker's weekly status reports with his hours reported to payroll, and found a significant discrepancy. On December 21, 1992, Coldren sent a memorandum to Parker requesting that he explain, in writing, the discrepancy in his time reporting as well as his delayed progress on the conversion. The memo also requested a meeting between Parker, Coldren, and Dr. Raucher, the division director, to discuss Parker's written response.
Parker's response attributed his time estimate overruns to miscalculations in his project estimates, explaining that part of the estimating error may have resulted from the reduction he was required to make to his original estimate. The response also stated: "Regardless of any estimating errors or delays, I anticipate completing the tasks by the January 31, 1993 due date." Nowhere in his response did Parker claim that the sequelae of his head injury were impeding his progress, or that he needed some special accommodation to enable him to complete the assignment.
On January 8, 1993, Parker sent a memorandum to Dr. Raucher that stated: "Due to unanticipated complications and delays, I cannot guarantee meeting our estimated completion date of January 31st. February 19th is the earliest completion date I can support with confidence." Again, Parker did not indicate that his delays were caused by the sequelae of his injury or that some special accommodation would have enabled him to adhere to his original due date.
On February 3, 1993, Parker sent a memorandum to Coldren that stated:
I cannot guarantee meeting our revised completion date of February 19, 1993. Due to illness and other complications, my work on Phase I of the project has been delayed. I hope to complete Phase I of the [conversion] by early March.
Coldren's response to Parker's memo was to schedule a special job performance evaluation. As part of that evaluation, Parker was required to provide a demonstration of the completed portions of the project. The demonstration took place on March 3, 1993. Parker was unable to demonstrate all of the system's functions. As of March 3, 1993, Parker had spent approximately 830 hours on the conversion and had yet to complete tasks that he had estimated would take an additional 234 hours.
On March 10, 1993, Parker sent the following e-mail message to Coldren:
In late December and early January I did not realize the impact the medical and neurological challenges I was experiencing would have on the completion of Phase I of the [conversion]. As I began to realize the impact of the medical challenges on the project in mid-January, I have tried to keep you informed and requested your support while I worked to handle the difficulties. While I am working to handle the medical and neurological challenges, it will be difficult for me to guarantee a firm completion date for Phase I.
This represents the first time that Parker blamed his deficient work performance on his alleged disability. Parker's special evaluation, given March 11, 1993, rated his work performance as "unacceptable" and recommended that Parker be removed from his assignment in DSD as an Analyst/Programmer. The next day, on March 12, 1993, Parker sent a letter to Dr. Elfreda Massie, Associate Superintendent, challenging the special evaluation and recommendation for termination. In the letter, Parker blamed persistent health problems for his delay in completing the VPIS conversion. The letter read in part:
Since I began work on Phase I of the [conversion], in addition to having a cold and the flu, I have had two significant health-related challenges that have impacted my progress on this project — a recently diagnosed gastrointestinal condition and ongoing neurological impairments resulting from a closed head injury I sustained in 1985.
He asserted that "[i]n the past, my supervisors and directors have been very supportive during the periods that my neurological impairments adversely affected my productivity," and noted his significant work and academic accomplishments in that "positive and supportive environment."
In addition, on April 2, 1993, Parker's neuropsychologist, Dr. Lamott, sent a letter to Dr. Massie that described the sequelae of Parker's head injury as including extreme intermittent fatigue, initiation inertia, poor conceptual focus and difficulties structuring time and tasks. The letter stated: "These problems have had a significant negative effect upon his job performance in the past," and requested that any contemplated personnel actions by MCPS against Parker be deferred until his posttraumatic sequelae could be re-evaluated.
Despite Parker's appeal, he was removed from DSD and placed on administrative leave, with pay, beginning April 15, 1993. MCPS' stated purpose for placing Parker on leave was to review his medical documents so that his employment status could be assessed. Parker claims that his special evaluation and subsequent removal from DSD was discriminatory because white DSD staff members who were excessively absent and failed to meet deadlines were given project extensions or assigned additional staff rather than recommended for termination.
Among the medical documentation provided by Parker during his leave was another letter from Dr. Lamott describing the sequelae of Parker's head injury. The letter recommended that certain accommodations be provided to Parker in the workplace, such as regularly scheduled meetings with supervisors to review his work and flexible work hours. The evaluation of another neuropsychologist consulted by Parker, Dr. Patrick Savage, was not entirely consistent with Dr. Lamott's assessment. Dr. Savage's evaluation read in part:
There did not appear to be any difficulty with maintaining attention or concentration. At times when he became anxious and or frustrated, these emotions did not appear to interfere with his task performance to a notable degree. No unusual fatigue was noted.
. . . .
The results of the neuropsychological evaluation strongly suggest that [Parker] is not experiencing significant impairment of brain function at this time. With the exception of mild-moderately impaired performances on a measure of complex psychomotor problem solving strongly suggestive of difficulties with tactile-kinesthetic spatial analysis, his results all fall within the range of normal function.
. . . .
Despite the results of the exam and reviewing them, particularly the portion of the exam assessing brain function, with Mr. Parker, he continues to believe that there is some neurological dysfunction from which he is suffering. . . . It is more likely at this time that Mr. Parker's difficulty in day to day functioning is the result of his emotional turmoil and perhaps at times, particularly when he is under intense stress, some difficulties of cognitive function.
On September 23, 1993, Parker was reinstated and assigned to the Magnet Program at Montgomery Blair High School ("Blair"). He performed the duties of a computer lab instructional assistant, but retained his Analyst/Programmer job title and salary. The purpose of this placement, as stated in a memorandum from Dr. Massie to her supervisor prior to Parker's reinstatement, was: 1) to "evaluate [Parker's] performance in this assignment to determine his ability to work with students," 2) to permit him to work with computers and retain his proficiency in that area at his Analyst/Programmer pay grade, and 3) in the face of conflicting diagnoses from the doctors who examined Parker, to gather more data to determine the extent to which Parker's disability limited MCPS' options for making a permanent placement. Parker claims this placement denied him the opportunity to prove his ability to perform the duties of an Analyst/Programmer and "ignored the recommendation of his doctors." He also claims that in his position at Blair he was not provided the accommodation of a flexible work schedule that is available to DSD Analyst/Programmers.
Dr. Lamott's May 25, 1993, letter regarding the sequelae of Parker's head injury and recommending strategies for dealing with them stated that the "mere downgrading of [Parker's] position cannot be seen as a viable alternative [to providing appropriate accommodations] since the problems he has will affect his performance in any job."
Shortly after his placement at Blair, Parker's supervisor raised concerns about excessive cigarette breaks, the need constantly to remind Parker to complete his tasks, the unusual amount of time it took Parker to complete assigned projects, and his failure to keep a daily log of work activities as instructed. Parker responded to these concerns with two letters, dated October 19, 1993, and October 25, 1993. In the first, Parker addressed each of the concerns raised by his supervisor and asserted: "[T]here have been no problems with the quality of my work or the progress I have made in learning new tasks associated with this placement." He also complained that his new position was routine and monotonous, and did not offer him "an opportunity for creativity and intellectual challenge." In the second letter, Parker again complained that "no job responsibilities offering me an opportunity for creativity and intellectual challenge were delineated as [he] had requested." He also asserted: "I believe the position [at Blair] does not offer opportunities for me to contribute and grow in a manner appropriate to my education, training and experience." Finally, the letter claimed that "appropriate accommodations" for Parker in his position at Blair had not been discussed, though Dr. Massie had agreed to do so.
On or about October 25, 1993, Parker filed a charge of discrimination against MCPS with the EEOC. He charged that he was being discriminated against on the basis of his disability, and cited, among others, the following discriminatory acts: 1) denial of reasonable and previously provided accommodations; 2) his March 1993 special job performance evaluation recommending termination of his position at DSD; 3) placement on administrative leave in April 1993; and 4) placement at Blair following his reinstatement in September 1993.
In February 1994, Parker requested reassignment to work on a new project at Blair. Parker was assigned to work with Robert Hopkins, a Technology Resource Teacher, to develop a Vocational Services Team Instructional Monitoring System. This project provided Parker with a better opportunity to use his programming skills than did his work with the Magnet Program. Parker and Hopkins met regularly to review his work. An evaluation of Parker's work performance in July 1995 indicated that Parker was doing an overall "average" job in his new assignment. However, Parker's attendance problem persisted.
In May 1994, Parker amended his charge of discrimination filed with the EEOC. Parker's amended charge essentially restated the allegations contained in his initial charge, but provided more detail regarding his 9/23/93 reassignment and the specific acts of discrimination allegedly carried out against him while at Blair. The amended charge also contained allegations of "new" discriminatory conduct that occurred after Parker filed the initial charge. The most significant amendment to Parker's charges, however, was the allegation that MCPS' prior and current discriminatory conduct was motivated not only by his disability, but by his race and color. He also charged that he was being retaliated against for filing the initial charge.
In January 1996, Parker requested extended personal illness leave. Parker described his illness as a "neuropsychological breakdown resulting from his placement at Blair." In an April 1996 letter, one of Parker's doctors explained that he was "experiencing severe and disabling fatigue, inertia and depression," and stated that it would be "medically harmful" for Parker to return to work at that time.
Parker returned to work in or about August 1996 in an overhire position at Sligo Middle School ("Sligo"). Parker was assigned half-time as a reader for a visually impaired administrator, Sylvia Minor, and half-time as an aide in the computer lab. Despite having been removed from his position as an Analyst/Programmer at DSD in 1993, Parker continued to maintain his Analyst/Programmer salary and job title. Shortly after his placement, Parker raised concerns that his work schedule was not flexible enough to "accommodate" him. Parker was thereafter permitted to report to work at 7:00 a.m., 7:30 a.m., 8:00 a.m., or 8:30 a.m each day. Parker, however, continued to arrive late for work, and frequently disappeared from his assigned work area. This, MCPS claims, interfered with the accommodation it was providing for Minor. As a result, Parker was removed from his position as Minor's reader on September 26, 1996, but was permitted to continue as a half-time computer lab aide. Plaintiff continues to work at Sligo as a computer lab aide on a half-time basis, receiving the salary of an Analyst/Programmer for his half-time hours.
On July 30, 1997, the EEOC issued a right-to-sue letter to Parker for both his initial and amended charges of discrimination. The EEOC concluded that Parker had not provided information sufficient to establish a violation of the ADA or Title VII. Parker filed suit in this court on October 29, 1997, alleging race discrimination in violation of Title VII, and disability discrimination in violation of the ADA and Rehabilitation Act. Parker's suit also charges that he was retaliated against by MCPS for filing his charges of discrimination with the EEOC. He seeks money damages and reinstatement to his former position as an Analyst/Programmer at DSD. II. Defendant's Motion to Dismiss
Defendant asserts at page 25, n. 28 of its motion that Plaintiff's complaint does not allege retaliation. Although the complaint arguably contains a retaliation claim in paragraph 4.8, Plaintiff does not challenge Defendant's assertion, and thus appears to have abandoned this theory of recovery. In any event, the court is of the opinion that Parker cannot establish a prima facie case of retaliation because he cannot show a causal connection between the protected activity and alleged adverse employment actions. See Munday v. Waste Mgmt. of N. Am., Inc., 126 F.3d 239, 242 (4th Cir. 1997), cert. denied, 118 S.Ct. 1053 (1998). A careful review of Plaintiff's amended EEOC charge and complaint indicate that he had been claiming retaliation based on the fact that MCPS continued with its discriminatory conduct after he filed his initial and amended charges of discrimination. If these alleged "retaliatory" actions were merely a continuation of discriminatory conduct of the same nature that prompted the initial filing, it is hard to see how a causal connection exists between that conduct and the filing of the EEOC charges.
Defendant's motion claims that as part of a 1997 reorganization, MCPS eliminated the position to which Parker seeks reinstatement. In his opposition, Parker states that he seeks reinstatement to a position comparable to his old position.
A. Race Discrimination Claim
Defendant argues that Plaintiff cannot litigate his claim of race discrimination because timely administrative charges alleging such discrimination were never filed, and Plaintiff's claims of race discrimination do not relate back to the original charge alleging disability discrimination. Plaintiff counters that the amended charge of discrimination filed May 19, 1994, is a charge "developed in the reasonable course of the investigation" of the initial charge of disability discrimination and thus relates back, or, alternatively, stands on its own as a timely charge of race discrimination that need not relate back to his initial charge.
A plaintiff must generally exhaust his or her administrative remedies with the EEOC prior to pursuing a Title VII claim in federal court. Davis v. North Carolina Dep't of Correction, 48 F.3d 134, 137 (4th Cir. 1995). Claims that are not part of a timely-filed EEOC charge for which the plaintiff has received a right to sue letter are generally barred. See Evans v. Technologies Applications Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996). To be timely, a charge must be filed with the EEOC within 300 days after the alleged discriminatory act. Francis v. Board of Sch. Comm'rs, 32 F. Supp.2d 316, 321 (D. Md. 1999) (mem.) (citing EEOC v. Techalloy Md., Inc., 894 F.2d 676, 679 (4th Cir. 1990)); see 42 U.S.C. § 2000e-5(e)(1). However, certain amendments to a charge filed with the EEOC may relate back to the filing date of the original charge and be considered timely even if the amendment occurs after the period for filing an initial charge has run. To relate back, an amendment must 1) cure technical defects or omissions, 2)clarify or amplify allegations made in the original charge, or 3) allege additional acts that constitute unlawful employment practices "related to or growing out of the subject matter of the original charge." 29 C.F.R. § 1601.12(b).
Parker's initial charge of discrimination, filed October 26 1993, alleged that he was discriminated against by MCPS on the basis of his disability. The acts of discrimination set forth included general allegations that Parker was denied reasonable and previously provided accommodations for his disability, and that he was denied privileges of employment such as equal opportunity to participate in training and to gain supervisory experience. The specific acts of discrimination alleged included his special job performance evaluation on 3/13/93 that recommended his termination, placement on administrative leave as of 4/15/93, denial of annual salary increase due 7/20/93, and demotion and reassignment to Blair on 9/23/93.
Parker's amended charge of discrimination, filed May 19, 1994, essentially restated the allegations contained in his initial charge, but provided more detail regarding his 9/23/93 reassignment and the specific acts of discrimination carried out against him while at Blair. Parker also added a charge that MCPS' prior and current discriminatory conduct was motivated not only by his disability, but by his race.
The amended charge also contained allegations of "new" discriminatory conduct that occurred after Parker filed the initial charge.
Parker also charged that continued acts of discrimination by MCPS were in retaliation for filing the initial charge.
Although Parker's charge of race discrimination derives from the same facts and circumstances that formed the basis of his original ADA charge, those portions of the amended charge alleging race discrimination do not relate back. The Fourth Circuit has made clear that an amendment to an EEOC charge alleging an entirely new theory of recovery does not relate back to the original charge. Evans, 80 F.3d at 963; accord Simms v. Oklahoma ex rel. Dep't of Mental Health Substance Abuse Servs., 165 F.3d 1321, 1327 (10th Cir. 1999); Fairchild v. Forma Scientific, Inc., 147 F.3d 567, 575 (7th Cir. 1998); Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 675 (9th Cir. 1988). However, as Parker points out, he does not need the benefit of the relation back doctrine for acts of race discrimination that occurred within 300 days prior to his filing the amended charge. With respect to such acts, the amended charge constitutes a timely filed charge of discrimination. Therefore, the acts of racial discrimination alleged by Parker that occurred on or after July 23, 1993, 300 days prior to the filing of the amended charge on May 19, 1994, were the subject of a timely administrative charge, and may be litigated by the Plaintiff. This means that Plaintiff may litigate his claim of race discrimination arising from his reassignment to Blair on September 23, 1993, and any alleged racially discriminatory treatment occurring while Parker was at Blair.
B. Claims of Discrimination at Blair and Sligo Not Detailed in Charges Filed With EEOC
All other portions of the amended charge will relate back because, with respect to the claim of disability discrimination, the amended charge is simply a clarification and amplification of facts supporting the charge as well as an allegation of additional acts constituting disability discrimination.
In addition, because Parker has alleged a pattern of discriminatory conduct, he can recover for pre-limitations conduct under a continuing violation theory if he can demonstrate that MCPS' conduct was part of a pattern that derived from the same discriminatory animus. See Dachman v. Shalala, 46 F. Supp.2d 419, 435 (D. Md. 1999) (mem.); Redding v. Anne Arundel County, 996 F. Supp. 488, 490 (D. Md. 1998) (mem.).
Defendant next argues that Plaintiff cannot litigate claims arising out of the alleged discriminatory treatment occurring at Blair and Sligo because these instances of discrimination were not raised in the charges filed by the Plaintiff with the EEOC. The court disagrees.
As an initial matter, Defendant's contention that Parker never alleged discriminatory treatment at Blair in the charges filed with the EEOC is simply wrong. Both charges alleged discriminatory treatment at Blair. In his initial charge, after noting his transfer to Blair, Parker alleges:
In the position to which I was transferred, I have not only been denied accommodations, but have been denied terms, conditions, and privileges of employment that were available to me in my position in the Department of Technology Planning and Data Operations, including: flexible work hours; flexible use of annual leave; equal opportunity to participate in training; opportunities for staff supervisory experience; and other technically oriented opportunities necessary for advancement in my current line of promotion.
In his amended charge, Parker amplifies the allegations contained in the original charge by detailing specific acts of discriminatory treatment occurring at Blair and alleging that such treatment is ongoing:
In my current placement in the Blair Magnet Program, I continue to be denied adequate supports to perform my duties, including consistent access to a Macintosh computer and a telephone in my office, which I need to continue work on my currently assigned projects. These above mentioned supports are provided to other Blair Magnet staff.
In addition to the acts of discrimination set forth in his initial and amended charges filed with the EEOC, Parker's complaint alleges additional discriminatory treatment occurring after the filing of his amended charge. Liberally construed, the complaint alleges that the discriminatory treatment occurred throughout his tenure at Blair and continued after his transfer to Sligo. Parker did not file an additional charge with the EEOC addressing the discriminatory treatment occurring after he filed his amended charge. His failure to do so, Defendants contend, bars any claim for these acts.
As a general matter, the allegations contained in the administrative charge of discrimination operate to limit the scope of any subsequent judicial complaint. Evans, 80 F.3d at 962-63 (citing King v. Seaboard Coast Line R.R. Co., 538 F.2d 581, 583 (4th Cir. 1976)). However, "[w]hen an employee seeks judicial relief for incidents not listed in his original charge to the EEOC, the judicial complaint nevertheless may encompass any discrimination like or reasonably related to the allegations of the EEOC charge, including new acts occurring during the pendency of the charge before the EEOC." Oubichon v. North Am. Rockwell Corp., 482 F.2d 569, 571 (9th Cir. 1973) (citing numerous cases). Thus, many courts have held that acts committed pursuant to a pattern of discrimination challenged in an EEOC complaint, but occurring after its filing, may be challenged in district court without filing another EEOC complaint. See, e.g., Brown v. Hartshorne Pub. Sch. Dist. No. 1, 864 F.2d 680, 682 (10th Cir. 1988); Almendral v. New York State Office of Mental Health, 743 F.2d 963, 967 (2d Cir. 1984); Waiters v. Parsons, 729 F.2d 233, 237-38 (3d Cir. 1984); Oubichon, 482 F.2d at 571; cf. Nealon v. Stone, 958 F.2d 584, 590 (4th Cir. 1992) (holding that plaintiff claiming she was retaliated against for filing EEOC charge need not exhaust administrative remedies with respect to retaliation claim before suing in federal court because of the "generally accepted principle that the scope of a Title VII lawsuit may extend to any kind of discrimination like or related to allegations contained in the charge and growing out of such allegations during the pendency of the case before the Commission." (citations omitted)).
In this case, the charges filed by Plaintiff with the EEOC as well as his judicial complaint allege a continuing pattern of discrimination carried out by MCPS. The discrimination claims arising from additional acts occurring at Blair and Sligo after the amended charge was filed are "reasonably related" to Parker's initial charges and may therefore be maintained in this lawsuit. See Evans, 80 F.3d at 963. Title VII and the ADA do not require a plaintiff to return to the EEOC every time he claims a new instance of discrimination in order to have the courts consider subsequent incidents along with the original ones. To do so would "erect a needless procedural barrier" to the resolution of such claims. Oubichon, 482 F.2d at 571.
III. Motion for Summary Judgment
Having determined which claims were properly included in Plaintiff's complaint, the court addresses whether Defendant is entitled to summary judgment on those claims.
A. Summary Judgment Standard
It is well established that a motion for summary judgment will be granted only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In other words, if there clearly exist factual issues "that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party," then summary judgment is inappropriate. Anderson, 477 U.S. at 250; see also Pulliam Inv. Co., Inc. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987); Morrison v. Nissan Motor Co., Ltd., 601 F.2d 139, 141 (4th Cir. 1979); Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir. 1950). The moving party bears the burden of showing that there is no genuine issue of material fact. Fed.R.Civ.P. 56(c); Pulliam, 810 F.2d at 1286 (citing Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979)).
When ruling on a motion for summary judgment, the court must draw all reasonable inferences in favor of and construe the facts in the light most favorable to the non-moving part. Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 437 (4th Cir. 1998). A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. "[A] complete failure of proof concerning an essential element . . . necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323. Thus, on those issues on which the nonmoving party will have the burden of proof, it is his or her responsibility to confront the motion for summary judgment with an affidavit or other similar evidence. Anderson, 477 U.S. at 256.
In Celotex, the Supreme Court stated:
In cases like the instant one, where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the "pleadings, depositions, answers to interrogatories, and admissions on file." Such a motion, whether or not accompanied by affidavits, will be "made and supported as provided in this rule," and Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the "depositions, answers to interrogatories, and admissions on file," designate "specific facts showing that there is a genuine issue for trial."Celotex, 477 U.S. at 324. However, "`a mere scintilla of evidence is not enough to create a fact issue.'" Barwick v. Celotex Corp., 736 F.2d 946, 958-59 (4th Cir. 1984) (quoting Seago v. North Carolina Theatres, Inc., 42 F.R.D. 627, 632 (E.D.N.C. 1966), aff'd, 388 F.2d 987 (4th Cir. 1967)). There must be "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).
B. McDonnell Douglas Scheme of Proof
In determining whether to grant summary judgment on Plaintiff's Title VII, ADA, and Rehabilitation Act claims, the court must apply the familiar McDonnell Douglas burden-shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Ennis v. National Ass'n of Business Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995). Under this framework, a plaintiff must carry the initial burden of establishing a prima facie case of discrimination. Williams v. Cerberonics, Inc., 871 F.2d 452, 455 (4th Cir. 1989) (citing McDonnell Douglas, 411 U.S. at 802; Holmes v. Bevilacqua, 794 F.2d 142, 146 (4th Cir. 1986) (en banc); Smith v. University of N.C., 632 F.2d 316, 332 (4th Cir. 1980)). An inference of discrimination arises once the prima facie case is established. Id. at 455-56. This inference may be rebutted, however, if the employer can provide a legitimate, nondiscriminatory reason for the termination. Id.; see Gillins v. Berkeley Elec. Coop., Inc., 148 F.3d 413, 416 (4th Cir. 1998) ("[U]nder the McDonnell Douglas burden-shifting scheme, a defendant is required to respond to the prima facie case by `merely articulating' a nondiscriminatory criterion." (citing Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 25 (1978))). Once the employer proffers a legitimate nondiscriminatory reason for the termination, the burden shifts back to the plaintiff to produce evidence that the proffered reason is pretextual. Williams, 871 F.2d at 456. To satisfy this final burden, the plaintiff must make a two-pronged showing: "he must adduce sufficient evidence both that the proffered, nondiscriminatory reason is false and that . . . discrimination is the `real reason' for [his termination]." Gillins, 148 F.3d at 417 (citing Vaughan v. Metrahealth Cos., Inc., 145 F.3d 197, 201-02 (4th Cir. 1998)).
Plaintiff must raise a genuine issue of material fact regarding the existence of his prima facie case in order to survive the Defendant's motion for summary judgment. Thornbrough v. Columbus Greenville R.R. Co., 760 F.2d 633, 641 n. 8 (5th Cir. 1985). However, generating a genuine issue of material fact regarding the existence of the prima facie case is not sufficient to survive a motion for summary judgment when the defendant can articulate legitimate nondiscriminatory reasons for the discharge of an employee. In that case, the plaintiff also has the burden of establishing a genuine issue of material fact on the question whether the defendant's proffered reasons are pretext. See Hughes v. Bedsole, 48 F.3d 1376, 1384 (4th Cir. 1995).
C. ADA and Rehabilitation Act Claims
To make out a prima facie case of discrimination in violation of the ADA and Rehabilitation Act, a plaintiff must show that 1) he is a qualified individual with a disability; 2) he was discharged or suffered some other adverse employment action; 3) at the time of the adverse employment action, he was performing his job at a level that met his employer's legitimate expectations; and 4) the adverse employment action occurred under circumstances giving rise to a reasonable inference of discrimination. See Ennis, 53 F.3d at 58. Defendant challenges Plaintiff's ability to meet the first and third elements of the required prima facie case.
Defendant first argues that Plaintiff does not have a disability as that term is defined in the ADA and its implementing regulations. The ADA states:
Because the language of the ADA and Rehabilitation Act is substantially similar and the same analysis applies to claims under both statutes, there is no need to quote the provisions of each statute. Doe v. University of Md. Med. Sys. Corp., 50 F.3d 1261, 1265 n. 9 (4th cir. 1995).
The term "disability" means, with respect to an individual —
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102(2). A "physical or mental impairment" is any "physiological disorder or condition" that affects one or more of the various body systems, including the neurological system. 29 C.F.R. § 1630.2(h). The term "major life activities" refers to those activities that an average person can perform with little or no difficulty, such as "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." Id. § 1630.2(i). "Substantially limits" is defined as either the inability to perform a major life activity, or a serious restriction on the ability to perform a major life activity as compared to an average person in the general population. Id. § 1630.2(j).
As an initial matter, the court finds that Parker has satisfied his burden of showing he has a physical impairment. There is no dispute that Parker suffered a severe closed head injury in 1985, and Parker has presented sufficient evidence from which a jury could find that his neurological functioning continues to be impaired by that injury. See 35 C.F.R. pt. 35, app. A (stating that "traumatic brain injury" is a physiological condition affecting the neurological system and thus a physical impairment within the meaning of the ADA).
The critical question in this case is whether the sequelae Parker suffers as the result of his head injury substantially limit one of his major life activities. Parker contends that his impairments place substantial limits on his major life activities of working and "academic studies." Parker alternatively contends that he is disabled under the ADA and Rehabilitation Act because MCPS regarded him as having a disability, and because he has a "record" of an impairment substantially limiting a major life activity.
The court finds that Parker has not produced sufficient evidence to permit a jury to conclude that he is substantially limited in a major life activity, that MCPS regarded him as having a substantially limiting impairment, or that he has a record of an impairment substantially limiting a major life activity. Consequently, Parker cannot show that he has a disability under the ADA or Rehabilitation Act. Summary judgment shall therefore be granted as to Parker's ADA and Rehabilitation Act claims.
1. Parker is Not Substantially Limited in His Ability to Work
When the major life activity at issue is working, the inability to perform a particular job does not constitute a substantial limitation. Halperin v. Abacus Tech. Corp., 128 F.3d 191, 199 (4th Cir. 1997) (citing Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 723 (2d Cir. 1994)). Rather, "substantially limits" means that the impairment must significantly restrict an individual's ability to perform a wide range of jobs. Id.; see Gupton v. Virginia, 14 F.3d 203, 205 (4th Cir. 1994); Forrisi v. Bowen, 794 F.2d 931, 935 (4th Cir. 1986); see also Beaver v. Delta Air Lines, Inc., 43 F. Supp.2d 685, 692 (N.D. Tex. 1999) ("The inability to work at the specific job of one's choosing is not a substantial limitation on a major life activity. The impairment must substantially limit employment generally." (internal quotation marks omitted) (quoting Hileman v. City of Dallas, 115 F.3d 352, 353 (5th Cir. 1997) (quoting Byrne v. Board of Educ., 979 F.2d 560, 565 (7th Cir. 1992)))); 29 C.F.R. § 1630.2(j)(3) ("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.").
Even assuming that Parker was substantially limited in his ability to perform the functions of an Analyst/Programmer at DSD, the record indicates that he was not so limited with regard to other positions at MCPS. After his removal from DSD and return from administrative leave in September 1993, Plaintiff was placed at Blair to perform the duties of a computer lab instructional assistant. In an October 19, 1993 letter to Dr. Massie regarding his job performance at Blair, Parker claimed: "there have been no problems with the quality of my work or the progress I have made in learning new tasks associated with this placement." He also complained that his new job at Blair did not present enough of an intellectual challenge for him. In response to this complaint, MCPS assigned Parker to work on the development of an Instructional Monitoring System at Blair. His supervisor at this new assignment rated Parker's job performance as "average," noting that he "maintain[ed] [a] high quality of work."
After another period of leave, Parker was assigned to Sligo to work half-time as a reader and half-time as a computer lab aide. He was relieved of his position as a reader because he consistently failed to report to work on time, but continues to work, to the apparent satisfaction of MCPS, as a computer lab aide. See Beaver, 43 F. Supp.2d at 692 (holding fact that plaintiff was still employed by defendant at time of lawsuit dispositive of claim that she was substantially limited in the major life activity of working). This evidence is inconsistent with Parker's claim that he is substantially limited in his ability to work, and the court finds that no reasonable jury could conclude he is so limited.
2. Parker is Not Substantially Limited in His Ability to Learn
Parker also claims that his impairment substantially limits his major life activity of "academic studies." The court equates this with a contention that he is substantially limited in his ability to learn. The evidence in the record, however, belies this contention.
The only evidence in the record supporting Parker's contention is his lack of success in the Masters Program in 1991-92. However, there are serious questions regarding Parker's ability to establish a causal connection between his educational failure and the sequelae of his closed head injury. In a May 1992 letter to the Director of Personnel Services for MCPS regarding his difficulties in the Masters Program, Parker explained: "[W]ritten expression activities have represented a major academic challenge throughout my academic studies." The letter did not in any way attribute his difficulties to the sequelae of his head injury. Thus, there is not sufficient evidence from which a jury could find that any limitation in Parker's ability to learn was caused by his impairment.
When MCPS notified Parker that it might seek to recover all or part of the salary paid to him while on leave, Parker produced a letter from his neuropsychologist which stated that Parker's head injury "may have adversely impacted his academic leave studies." (emphasis added).
Regardless of the causation issues, Parker has the more fundamental problem of establishing that he is substantially limited in his ability to learn. The court finds that even if a causal connection could be established between Parker's impairment and his poor performance in graduate school, a jury could not reasonably conclude that Parker's ability to learn was substantially limited. For over four years following the 1985 accident, a period during which Parker claims he suffered from the sequelae of his injury, Parker attended University College completing a program in computer science. In December 1989, he earned a Bachelor of Science degree, graduating with a cumulative "B+" average. Less than two years later, Parker began the Masters Program.
Quite obviously, the nature of the course work in a graduate level program in education varies greatly from that in an undergraduate computer science program. The ability to succeed at one, but not the other, cannot be seen as evidence that an individual is substantially limited in his ability to learn. As Parker himself stated, he simply had difficulty with the type of written expression required by the Masters Program. Even if this difficulty was caused by the sequelae of his head injury, his degree in computer science demonstrates it did not substantially limit his ability to learn generally. See Leisen v. City of Shelbyville, 153 F.3d 805, 808 (7th Cir. 1998) (holding that plaintiff who had difficulty passing course for paramedic certification, but around the same time successfully completed other training courses, could not be found substantially limited in her ability to learn). The undisputed facts of this case rule out any possible finding that Parker was substantially limited in the activity of learning.
Parker's opposition, as well as his charge of discrimination filed with the EEOC, states that he has been diagnosed with "learning disabilities" in addition to the sequelae of his closed head injury. Nowhere in Plaintiff's complaint, however, does he allege that his disabilities include learning disabilities. The court, therefore, does not consider whether Parker in fact has such an "impairment." However, given the court's conclusion that Parker cannot show he is substantially limited in the activity of learning, this is inconsequential to the fate of Parker's claim.
3. MCPS Did Not Regard Parker as Having a Disability
Plaintiff next contends that because his employer regarded him as having a disability, he is disabled under the ADA and Rehabilitation Act. See 42 U.S.C. § 12102(2)(C); 29 U.S.C. § 706(7)(B). As plaintiff points out with this argument, the ADA and Rehabilitation Act protect not only those who are actually disabled, but also those who are regarded by their employer as having a physical or mental impairment that substantially limits one or more of their major life activities. The EEOC regulations state that a person is regarded as having a substantially limiting impairment if the individual 1) has an impairment that does not substantially limit major life activities, but is treated by an employer as having such a limitation, 2) has an impairment that substantially limits major life activities only as the result of the attitude of an employer toward such impairment, or 3) has no impairment, but is treated by an employer as having a substantially limiting impairment. 29 C.F.R. § 1630.2(1). Parker's claim falls under the first definition, as there is no evidence that his impairment is substantially limiting, but he alleges that MCPS treated it as such.
The EEOC regulations, "while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986).
The Fourth Circuit has made clear that an employer does not necessarily regard an employee as being substantially limited in his ability to work simply because it finds the employee incapable of satisfying the demands of a particular job. Forrisi v. Bowen, 794 F.2d 931, 934 (4th Cir. 1986) (citing de la Torres v. Bolger, 610 F. Supp. 593, 597 (N.D. Tex. 1985); Tudyman v. United Airlines, 608 F. Supp. 739, 746 (C.D. Cal. 1984); E.E. Black, Ltd. v. Marshall, 497 F. Supp. 1088, 1100 (D. Haw. 1980)); see Welsh v. City of Tulsa, 977 F.2d 1415, 1419 (10th Cir. 1992) ("[A]n impairment that an employer perceives as limiting an individual's ability to perform only one job is not a handicap under the Act. Any other interpretation would render meaningless the requirement that the impairment substantially limit a major life activity."). At most, Parker has shown that MCPS regarded him as being substantially limited in his ability to work as an Analyst/ Programmer at MCPS. However, the fact that MCPS has retained Parker in various computer related positions since removing him from DSD shows that it does not regard him as being substantially limited in his ability to work generally. See Beaver, 43 F. Supp.2d at 693 ("[A]n employee is not `regarded as' having a disability when an employer places the employee in another position." (citing Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1025 (5th Cir. 1999); Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1121 (5th Cir. 1998)). A reasonable jury could only conclude that MCPS did not regard Parker as disabled.
As noted above, Parker claims he is substantially limited in the major life activities of work and learning. Parker has presented no evidence that he was treated by MCPS as if his ability to learn was substantially limited.
4. There is No Record of an Impairment That Substantially Limits a Major Life Activity
Parker also asserts he is disabled because MCPS has a documented record of his impairment. The EEOC regulations define "record of such impairment" as meaning that a person "has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities." 29 C.F.R. § 1630.2(k).
The intent of this provision, in part, is to ensure that people are not discriminated against because of a history of disability. . . .
This part of the definition is satisfied if a record relied on by an employer indicates that the individual has or has had a substantially limiting impairment. . . . There are many types of records that could potentially contain this information, including but not limited to, education, medical, or employment records.Id. pt. 1630, app.
The "record of impairment" standard is satisfied only if a plaintiff actually suffered a physical impairment that substantially limited a major life activity. Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1229 (11th Cir. 1999). As indicated above, Parker has failed to present evidence showing he is substantially limited in a major life activity. He therefore is not disabled under the "record of impairment" standard.
D. Title VII Race Discrimination Claim
Plaintiff alleges that his negative performance evaluation, removal from DSD, and subsequent reassignment to Blair were all racially motivated. He claims that similarly situated white employees at DSD were not similarly disciplined for their unsatisfactory job performance. To prove a prima facie case of racially disparate discipline, Parker must show: 1) that he is a member of a protected class; 2) that his misconduct was of comparable seriousness to the misconduct of employees not within the protected class; and 3) that the discipline imposed upon him was more severe than that imposed upon the similarly situated employees. Cook v. CSX Transp. Corp., 988 F.2d 507, 511 (4th Cir. 1993); Moore v. City of Charlotte, 754 F.2d 1100, 1105-06 (4th Cir. 1985).
In support of his claim, Parker alleges that "white DSD staff with disabilities severely affecting their productivity and attendance were maintained on the DSD staff." Specifically, he claims that George Williamson, a paraplegic Analyst/Programmer at DSD, and Richard Cummings, a paraplegic Programmer who also suffered from the sequelae of a head injury, "were maintained on the staff for extended periods of time after their disabilities prohibited them from performing the essential functions of their position." Parker offers only the deposition testimony of John Connolly, a former DSD employee, to substantiate his claims. However, Connolly's testimony is insufficient to permit a jury to conclude that these employees were similarly situated to Parker.
Parker has offered no other evidence that any of the alleged discriminatory actions by MCPS were motivated by his race.
Parker was removed from DSD and transferred to Blair primarily because he consistently missed required deadlines on the time sensitive VPIS conversion project and because he repeatedly took leave from work without getting prior approval. Connolly testified that he had no knowledge as to whether Cummings ever missed work deadlines, and gave no testimony regarding Cummings' attendance. When asked whether he had any personal knowledge as to whether Williamson missed a lot of deadlines, Connolly responded: "I think he missed a lot of deadlines because he was out a lot." However, what Connolly "thinks" is simply insufficient to show that Williamson was similarly situated to Parker. Connolly's testimony cites no specific instances of Williamson missing a deadline, and gives no indication that the deadlines he "thinks" Williamson missed were on time sensitive projects. Connolly also gives no indication that Williamson's absences occurred without prior approval.
Parker has failed to produce evidence that would enable him to establish a prima facie case of racially disparate discipline. Summary judgment shall therefore be granted on this claim.
IV. Conclusion
For the foregoing reasons, summary judgment shall be GRANTED in favor of Defendant and against Plaintiff on all claims.
A separate Order shall be entered.
ORDER
For the reasons stated in the accompanying Memorandum Opinion, IT IS this ____ day of September 1999, by the United States District Court for the District of Maryland, ORDERED that:
1. Defendant's Motion to Dismiss is DENIED; Defendant's alternative motion for Summary Judgment BE, and hereby IS, GRANTED;
2. Judgment BE, and hereby IS, ENTERED in favor of Montgomery County Public Schools and against Kevin M. Parker on all claims; and
3. The Clerk is directed to mail a copy of this Order and the accompanying Memorandum Opinion to counsel for the parties and CLOSE this case.