UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LARRY J. FRANCE,
Plaintiff-Appellant,

v.

BALTIMORE COUNTY, MARYLAND;
DAVID C. DEGRANGE, Individually
and as Supervisor of Baltimore
County Animal Control Division,
Defendants-Appellees,                                               No. 99-1107

and

C.A. (DUTCH) RUPPERSBURGER, III,
County Executive, BALTIMORE
COUNTY; MICHELLE A. LEVERETT,
M.D., Health Officer, Baltimore
County Health Department,
Defendants.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CA-98-2436-S)

Submitted: April 4, 2000

Decided: May 3, 2000

Before LUTTIG, WILLIAMS, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

Norris C. Ramsey, NORRIS C. RAMSEY, P.A., Baltimore, Mary-
land, for Appellant. Virginia Wood Barnhart, County Attorney, Paul
McLane Mayhew, Assistant County Attorney, BALTIMORE
COUNTY OFFICE OF LAW, Towson, Maryland, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Larry France filed an employment discrimination suit in the United
States District Court for the District of Maryland against David C.
DeGrange, his supervisor, and Baltimore County (collectively, Appel-
lees). France's complaint asserted claims for violation of the Ameri-
cans with Disabilities Act (ADA), violation of the Age Discrimination
in Employment Act (ADEA), and violation of France's constitutional
rights. The district court granted Appellees' motion to dismiss. France
noted a timely appeal. Finding no error, we affirm.

I.

Because this case is on appeal from a Rule 12(b)(6) dismissal, we
take the following facts as alleged in France's amended complaint to
be true. See Vickers v. Nash General Hosp., Inc. , 78 F.3d 139, 141
(4th Cir. 1996). France was employed by the Baltimore County,
Maryland government from 1968 to 1970 and then from July 1981 to
July 1996, reaching the position of Processing Supervisor of the Ani-
mal Control Division. In late 1993, France was injured in a traffic
accident while carrying out his duties within the Animal Control Divi-
sion. Once France returned to work in April 1994, his supervisor,
David DeGrange, refused to return France's duties to him and made
negative comments regarding France's injuries. DeGrange's abusive

                    2
treatment toward France continued throughout 1994 and culminated
in a meeting in March 1995 to discuss the issues involved with
France's employment.1 Although France was advised that his duties
would be returned if he ceased his physical therapy and psychother-
apy sessions during work hours, and France subsequently ceased such
sessions, France's duties were not returned.

In April 1995, DeGrange refused for the second year in a row to
perform France's mandatory performance evaluation. Two months
later, the Animal Control Division was moved from the Department
of Permits and Licensing to the Health Department of Baltimore
County. During the transition, France was not included in any of the
meetings, despite his supervisory position. In or about August 1995,
France met with the new division head at the Health Department, Joan
M. Colfer, to discuss the situation within the Animal Control Divi-
sion. During this meeting, France informed Colfer of the abusive
treatment he had received from his supervisor, the refusal of his
supervisor to return France's duties, and other inappropriate conduct,
including possible illegal actions observed in the Animal Control
Division. Colfer subsequently sent DeGrange a memorandum con-
firming two meetings where the two had discussed France's situation.
Colfer also ordered DeGrange to permit France to use sick time for
medical appointments and doctors' visits, to return France's duties,
and to complete France's evaluation for January 1996.

DeGrange did not follow Colfer's orders. Instead, his hostility
toward France increased after meeting with Colfer and receiving her
subsequent memorandum. In November 1995, the division created a
new position and hired a person to fill that position. The new hire,
who was thirty-one years old, was given many of the supervisory
duties France possessed before his accident. On June 12, 1996, while
France was on medical leave related to his deteriorating condition, he
was informed that due to budgetary cuts, his position would be elimi-
nated as of July 1, 1996. Faced with the possibility of losing his medi-
cal and other benefits, France filed for medical retirement on June 28,
1996.
_________________________________________________________________
1 The complaint and the parties' briefs are unclear as to who, besides
DeGrange, attended this meeting.

                    3
On or about June 27, 1996, France filed a grievance alleging dis-
crimination based upon age, disability, and retaliation with the Balti-
more County Labor Commission. At around that same time, France
contacted the Baltimore office of the United States Equal Employ-
ment Opportunity Commission (the EEOC), which told him to call
back after the Labor Commission had an opportunity to hear his case.
In November 1997, France filed a complaint with the EEOC, alleging
discrimination based upon age, disability, and retaliation.2 After
receiving a "dismissal and notice of rights" form from the EEOC,
France filed the instant suit, asserting claims for violation of the
ADA, violation of the ADEA, and violation of his constitutional
rights.

In dismissing France's complaint, the district court concluded that
France's ADA and ADEA claims were barred as untimely because
there was no actionable violation in the period for timely administra-
tive filing and because the organization with which France filed a
grievance, the Baltimore County Labor Commission, was not a state
deferral agency for purposes of extending the limitations period for
filing an administrative complaint with the EEOC. The district court
also concluded that even if the ADA and ADEA claims were timely,
France's complaint failed to state claims for hostile workplace envi-
ronment and that, in any event, such claims were outside the scope
of the administrative complaint. Finally, the district court concluded
that DeGrange was entitled to qualified immunity on France's First
Amendment claim.

France filed a timely notice of appeal of the district court's dis-
missal of his complaint. Before us, France argues that the district
court erred in dismissing his ADA and ADEA claims as untimely,
because (1) he was entitled to rely upon the advice of an EEOC
employee to wait until his claim was processed by the Baltimore
County Labor Commission before filing an EEOC charge, (2) the
Baltimore County Labor Commission is a state deferral agency, and
(3) he has alleged facts showing that Appellees engaged in continuing
acts of retaliation, harassment, and discrimination. France also con-
_________________________________________________________________
2 Although France alleges in his complaint that he filed a complaint
with the EEOC in November 1997, the EEOC charge itself shows that
it was not filed until March 3, 1998. In any event, this discrepancy has
no effect on the disposition of this case.

                    4
tends that his claims for hostile workplace environment are not out-
side the scope of his administrative complaint and that his complaint
clearly sets forth a pattern of egregious conduct sufficient to sustain
such claims under the ADA and the ADEA. Finally, France asserts
that DeGrange is not entitled to qualified immunity on France's First
Amendment claim because the speech that led to DeGrange's retalia-
tory action against France was on a matter of public concern and that
DeGrange deprived France of property rights in his employment with-
out due process of law by failing and refusing to return France's
duties to him, by failing to conduct performance evaluations despite
being directed to do so by DeGrange's supervisor, and by requiring
France to cease using work hours for medical attention and physical
treatments.

II.

This Court reviews a dismissal under Rule 12(b)(6) for failure to
state a claim de novo. See Republican Party of North Carolina v.
Martin, 980 F.2d 943, 952 n.16 (4th Cir. 1992). Because a 12(b)(6)
motion tests the sufficiency of a complaint, this Court's review "is
limited to whether the allegations constitute a short and plain state-
ment of the claim showing that the pleader is entitled to relief." Id.
at 952 (internal quotation marks omitted). "[A] complaint should not
be dismissed for failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief." Conley v. Gibson, 355 U.S.
41, 45-46 (1957). This court "must assume that the allegations of the
complaint are true and construe them in the light most favorable to
the plaintiff." Republican Party, 980 F.2d at 952.

We have reviewed the submitted record and briefs, as well as the
pertinent case law on this matter, and are persuaded that the judgment
of the district court was correct.3 See France v. Baltimore County, No.
S-98-2436 (D. Md. Dec. 17, 1998).

AFFIRMED
_________________________________________________________________

3 Although the district court did not address France's due process
claim, we have independently reviewed that claim and determined it to
be without merit.

                    5
