GHEE v. GOODWILL INDUSTRIES OF CHESAPEAKE, INC.

Full title: ODESSA GHEE v. GOODWILL INDUSTRIES OF THE CHESAPEAKE, INC

Court: United States District Court, D. Maryland

Date published: Mar 10, 2009

Civil No. JFM-09-251 (D. Md. Mar. 10, 2009)

Opinion

Civil No. JFM-09-251.

March 10, 2009

MEMORANDUM

J. MOTZ, District Judge

Plaintiff has brought this pro se action under the Americans With Disabilities Act against Goodwill Industries of the Chesapeake, Inc. Three motions are pending: (1) plaintiff's motion to remand the case to the Circuit Court for Baltimore City, from which it was removed, (2) defendant's motion to dismiss or for summary judgment and (3) plaintiff's motion to dismiss affidavit submitted in bad faith. Plaintiff's motions will be denied, and defendant's motion to dismiss or for summary judgment (to which plaintiff has responded) will be treated as one for summary judgment and, as such, will be granted.

As to plaintiff's motion to remand, the record makes clear that although plaintiff served copies of the summons upon employees of defendant, she never served a copy of the complaint upon defendant. Defendant obtained a copy of the complaint only when his counsel, recognizing that she was acting pro se, obtained the copy from the clerk of the Baltimore City Circuit Court on January 21, 2009. This action was promptly removed to this court on February 4, 2009. This removal was well within the 30 day window provided by 28 U.S.C. § 1446(b).

As to defendant's motion for summary judgment, the record also makes clear that plaintiff was not an employee of defendant but a participant in a federally funded rehabilitative training program operated by defendant. The Fourth Circuit has held that such participants are not employees of defendant. Baltimore Goodwill Industries v. NRRB, 134 F.3d 227, 229 (4th Cir. 1998 ( per curiam). Although the Fourth Circuit case was decided in the context of an alleged unfair labor practice allegedly committed by defendant in refusing to bargain with the unit certified by the NRRB, plaintiff has demonstrate no reason (and none appears to exist) for distinguishing between the meaning of "employer" within the meaning of the National Labor Relations Act and the ADA. See also Brennan v. Mercedes Benz USA, 388 F.3d 133, 135 (6th Cir. 2004) (holding that under the ADA plaintiff was not employed by an educational institution operating a post-graduate training program for persons with disabilities or the automobile manufacturer where the program was maintained).

A separate order effecting the rulings made in this memorandum is being entered herewith.

ORDER

For the reasons stated in the accompanying memorandum, it is, this 10th day of March 2009

ORDERED

1. Plaintiff's motion to remand is denied;

2. Plaintiff's motion to dismiss affidavit submitted in bad faith is denied; and

3. Defendant's motion to dismiss or for summary judgment is treated as one for summary judgment and, as such, is granted.