Friday, March 13–Developmental Center Lawsuit Dismissal Sought

BERLIN – The Worcester County Developmental Center (WCDC) and two staffers named in a discrimination lawsuit filed against the agency by a former employee last month, alleging a long pattern of intimidation and discrimination that ended with her termination in September 2008, are seeking to have the case dismissed.

Former WCDC employee Jometta Johnson, through her attorney, last month filed suit against the agency and two her supervisors alleging race discrimination, retaliation, assault and battery, and other charges including Americans with Disabilities (ADA) violations. According to the complaint, Johnson was fired on Sept. 25, 2008, after an alleged final act of discrimination and retaliation by her supervisors.

According to the complaint, in the months leading up to her termination, Johnson was allegedly subjected to a systematic pattern of abuse and intimidation with strong racial overtones that reached a pinnacle on the day she was fired, according to the complaint filed in U.S. District Court last week.

“Ms. Johnson, an African-American, was subjected to a workplace permeated with discriminatory intimidation, ridicule and insult that was sufficiently severe to alter the conditions of her employment and to create a hostile and abusive working environment,” the complaint filed by Salisbury attorney Robin Cockey reads.

The complaint lists as defendants the WCDC; Johnson’s former supervisor Sally Borzager, who was allegedly at the forefront of the problem; and human resources manager Nicole Dobelstein. It does not list as a defendant WCDC Executive Director June Walker, although the agency head is cited throughout the complaint, first for her alleged indifference to the situation and ultimately for her alleged racist remark at the time of Johnson’s dismissal. Johnson is seeking an undisclosed amount in compensatory and punitive awards as well as injunctive relief.

This week, attorneys for the defendants filed a formal answer to Johnson’s complaint seeking a motion for summary judgment, or in the alternative, a complete dismissal of the case. The formal response, submitted on behalf of the defendants by Baltimore attorneys Edward Ranier and Eric Steiner, addresses each count listed in the complaint and cites reasons why the case should be dismissed.

For example, the original complaint alleges discrimination based on Johnson’s real or perceived disability. In the complaint, Johnson claimed to have a chronic foot condition that required her to wear certain footwear to work, which did not necessarily comply with the stated dress code at the agency. The footwear issue caused much of the confrontation between Johnson and her supervisors and ultimately led to her dismissal.

However, the formal motion to have the case dismissed filed this week state’s Johnson’s claim of a disability and the associated ADA violations were not the centerpiece of the complaint. Instead, the defendant’s response claims Johnson’s complaint center on issues of racial discrimination.

“In her charge of discrimination, Ms. Johnson made no mention whatsoever of any claim of discrimination based on disability,” the response reads. “She did not check ‘disability’ as a basis of discrimination, she did not mention that she had a disability and she did not write that she complained about a disability to her supervisors. Her bases for retaliation were race and color.”

In fact, in Johnson’s own formal complaint, she alleges race discrimination, and not her disability, is at the center of her suit against the WCDC and the two supervisors.

“I believe that I have been discriminated and retaliated against in violation of the Civil Rights Act of 1964, as amended, because of my race, black, color, and because I engaged in a protected activity under the statute and was harassed and discharged.”

In one count of the suit, Johnson alleges a charge of intrusion upon seclusion, a legal term that essentially alleges her supervisors violated her privacy by contacting her doctor to clarify his note concerning the type of footwear she should be allowed to wear while at work. The formal answer does not deny Johnson’s supervisors contacted her doctor without her knowledge or permission, but it seeks to dismiss that charge because it asserts the defendants as employers had the right to contact the doctor.

“As alleged, Dr. Rano’s initial note stated that Ms. Johnson is to wear shoe gear to her tolerance and comfort level,” the formal answer reads. “It was not unreasonable for the defendant, as employer, to seek clarification of this clearly ambiguous statement. Although the defendant’s contact with Dr. Rano may have been mildly intrusive, that is not enough to support a cause of action for intrusion upon seclusion.”

While the defendants’ formal answer does address the disability and invasion of privacy elements of Johnson’s suit against the WCDC and the two supervisors, it makes no mention of the two alleged cases of assault by WCDC staffers in April 2008.