DAWN M. WRIGHT, Plaintiff,
KENT COUNTY DEPARTMENT OF SOCIAL SERVICES, et al., Defendants.
ELLEN LIPTON HOLLANDER, District Judge.
Plaintiff Dawn Wright filed suit against her employer, the Kent County Department of Social Services ("DSS"), as well as two individuals, Kerry Ahern-Brown, Director of DSS, and Stephen Sturgill, Assistant Director of DSS (collectively, the "individual defendants"),  alleging employment discrimination. In particular, the Amended Complaint (ECF 8) contains seven counts: (1) employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., as amended ("Title VII") (against DSS); (2) racial discrimination in contract, in violation of 42 U.S.C. § 1981 (against all defendants); (3) retaliation under Title VII (against DSS); (4) retaliation under the Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq. (against the individual defendants); (5) violation of various federal constitutional and statutory rights, under 42 U.S.C. § 1983 (against the individual defendants); (6) violation of various federal constitutional and statutory rights, under 42 U.S.C. § 1983 (against DSS); and (7) conspiracy to deprive plaintiff of federal rights under 42 U.S.C. § 1985(3) (against the individual defendants). Wright demands $300, 000 in compensatory damages from the defendants, with interest, costs, and legal fees. Amended Complaint ("Am. Compl.") ¶¶ 50, 83. As to Sturgill and Ahern-Brown, plaintiff also demands $1, 000, 000 in punitive damages. Id. ¶ 83.
Defendants have filed a pre-discovery motion to dismiss or, in the alternative, motion for summary judgment (ECF 14, the "Motion"), which plaintiff opposes (ECF 17). The Motion has been fully briefed,  and no hearing is necessary to resolve it. See Local Rule 105.6. For the reasons that follow, I will grant the Motion in part and deny it in part.
A. Factual Background
Wright, an African-American female, has been employed by DSS since 1993 and currently holds the position of Supervisor - Work Opportunities. Am. Compl. ¶¶ 3, 7. On or about May 14, 2008, Wright received her mid-cycle evaluation, in which she received an overall rating of "Exceeds Standards." Id. ¶ 8. Sturgill completed the May 2008 evaluation, which was approved by Ahern-Brown. Id. On or about November 25, 2008, Wright received her end-cycle evaluation, also completed by Sturgill, and again received an overall rating of "Exceeds Standards." Id. ¶ 10. However, Ahern-Brown "refused to sign/approve Wright's November 2008 evaluation because she did not agree with it." Id. ¶ 11. Although "Wright was never told why Ahern-Brown refused to sign it, " the evaluation was forwarded to DSS's Department of Human Resources. Id.
From approximately December 5, 2008, until February 17, 2009, Wright took a medical leave of absence from DSS due to a work-related injury. Id. ¶ 12. The parties disagree as to whether Wright was on leave pursuant to the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601 et seq., during that time. Compare Opp. at 16-17 (stating that Wright was on workers' compensation leave between December 2008 and February 2009 and only took FMLA leave in November 2009) with Def. Mem. at 24 (stating that Wright was on FMLA leave between December 2008 and February 2009). According to Wright, upon returning to work in February 2009, her superiors did not meet with her to familiarize her with events that had occurred during her leave of absence, nor was she informed of any changes to the DSS hierarchy or to the DSS Standard Operating Procedures ("SOPs"). Am. Compl. ¶ 13.
The Amended Complaint further asserts that, upon returning, Wright observed "changes in the behavior and attitude of several white subordinates, " including Kara Morris, Beth Collins, and Gene Powers. Id. According to Wright, those three employees all reported to African-American supervisors: either Wright or Sandra Crawford. In particular, Wright alleges that "there appeared to be a communication breakdown with openly offensive, hostile, and threatening behavior by the white subordinates against their African-American supervisors, " which included, among other things: (a) Morris and Collins reporting not to Wright and Crawford, but instead reporting directly to Sturgill, the Caucasian supervisor of Wright and Crawford; (b) Morris and Collins assuming "a more authoritative and supervisory role within the division"; and (c) statements made to Wright by Morris and Collins that were "humiliating, embarrassing, and demeaning, " indicating that "they were taking over Wright's and Crawford's supervisory positions." Id. ¶ 15.
On or about March 5, 2009, Wright sent an email to Sturgill in an attempt to address her concerns about Morris, Collins, and Powers, but Sturgill did not respond. Id. ¶ 16. Nevertheless, Wright says that on March 16, 2009, she received an email from Sturgill indicating that he had designated Powers as the "unit triage person." Id. ¶ 16. In light of her March 5 email, Wright asserts, the decision to grant additional responsibilities to Powers subjected her "to additional humiliating, embarrassing, demeaning, and discriminatory treatment in front of other employees whom Wright supervised and/or worked with at the DSS." Id. ¶ 17. Powers, however, allegedly refused to perform the duties as the unit triage person as outlined in the SOPs and, when confronted by Wright, denied that the tasks were his responsibility. Id. ¶ 18. Further, Powers allegedly went to a Caucasian supervisor, Lisa Falls, who assigned those tasks to another employee. Id. Wright claims that when she reported these events regarding Powers to Sturgill on or about March 19, 2009, he declined to address the matter with either Powers or Wright. Id. ¶ 19. Sturgill's actions, Wright says, amounted to tacit approval of Powers's discriminatory attitude toward Wright. Id. ¶ 20.
According to Wright, on or about March 20, 2009, Powers entered Wright's office, was "openly hostile, " and "made threatening move towards Plaintiff[']s face." Id. ¶ 21. Wright reported this incident to Sturgill via email, but claims that he refused to address it. Id. Additionally, on or about March 25, 2009, Wright "tried to address the hostility and threats made by Powers with Ahern-Brown, " but "received no response to the specific disciplinary situation with Powers." Id. ¶ 22.
Wright met with Sturgill and Ahern-Brown on or about March 31, 2009, and "expressed her concerns about the lack of communication, disrespect, and openly hostile and threatening behavior from Sturgill, Morris, Collins, and Powers." Id. ¶ 23. Among other things, she complained about (a) the lack of an update about "any changes that had taken place while she was absent from work on medical leave"; (b) the lack of response from Sturgill to her emails concerning Powers; (c) Morris and Collins being "allowed to go against the chain of command" and not being "held accountable for their failure to follow the SOPs"; and (d) Morris and Collins' statements that "that they were going to be taking over the positions held by Wright and Crawford." Id. According to Wright, Sturgill and Ahern-Brown's "only substantive response" was to offer Wright a newly created position at DSS, which Wright refused. See id. ¶ 24.
Immediately thereafter, Ahern-Brown "instructed Sturgill to document everything that Wright did from that point forward, " and "told Wright that if Ahern-Brown continued to get complaints about Wright, Ahern-Brown would either (1) reprimand and/or terminate Wright's employment or, alternatively, (2) Wright would have to accept the transfer to the newly created position." Id. ¶ 25. Wright asserts that she advised Ahern-Brown that she "was well aware that Sturgill and Ahern-Brown were trying to remove Wright and Crawford from their positions, " in order to allow their positions to be given instead "to Caucasians (Morris and Collins)." Id. ¶ 26.
In April 2009, Wright received multiple emails from Sturgill, urging her to accept the newly created position. Id. ¶ 27. Subsequently, Wright was "subjected to more humiliating, embarrassing, and offensive treatment at the DSS, " including, among other things, having her own subordinates "openly encouraged to go directly to Sturgill for everything they needed, " and having Sturgill overlook purported misconduct and errors by Morris, Collins, and Powers that Wright had reported to him. Id. ¶ 28.
At Wright's request, she met again with Sturgill and Ahern-Brown on or about May 28, 2009, to discuss her concerns about Morris's performance. Id. ¶ 29. Instead, Sturgill and Ahern-Brown used the meeting as an opportunity to encourage Wright to resign or take another position, which Wright again declined. Id. ¶ 30. According to Wright, once it became clear that she would neither resign nor accept another position, Sturgill and Ahern-Brown would not support Wright regarding the purported disciplinary issues involving other DSS employees, including Morris, Collins, and Powers. Id. ¶ 31.
Wright received a mid-cycle evaluation around July 2009, in which she received a "Needs Improvement" rating and therefore was placed on a performance improvement plan. Id. ¶ 32. According to Wright, Sturgill indicated that the mid-cycle evaluation was based not upon his own observations, but rather upon information from Morris and Collins. Id. ¶ 33.
On or about November 11, 2009, Wright took a leave of absence from DSS. Id. ¶ 35. As with her prior leave of absence, the parties disagree as to whether Wright was on leave pursuant to the FMLA during that time. Compare Am. Compl. ¶¶ 35-38 and Opp. at 16-17 (stating that Wright took FMLA leave beginning in November 2009) with Def. Mem. at 24 (stating that Wright had exhausted her FMLA leave earlier in the year and thus "was not entitled to FMLA leave when she took leave again on November 11, 2009").
According to Wright, her physician had advised her to take a medical leave, after she sought counseling and treatment for stress, depression, and stomach problems. Am. Compl. ¶ 34. On or about November 24, 2009, while on leave, Wright received a letter from Ahern-Brown instructing her to report to work on December, 1, 2009, and stating that a failure to do so would result in disciplinary action. Id. ¶ 36. On or about December 8, 2009, Wright received a second, similar letter, instructing her to report to work by December 15, 2009, and raising the possibility of termination if she failed to report. Id. ¶ 37.
Wright also alleges that, while on FMLA leave, she "received several harassing telephone calls from Ahern-Brown regarding [her] return to work." Id. ¶ 38. Further, she complains that in late 2009, when Sturgill and Ahern-Brown learned that Wright was filing an employment discrimination charge, they "increased their harassment" of her, including by: (a) "instructing other DSS employees not to associate with or assist Wright with threats and intimidation"; (b) "removing DSS employees from Wright's supervision"; and (c) calling and sending letters to Wright's home while she was on the alleged FMLA leave of absence, instructing her to return to work and threatening disciplinary action if she failed to do so. Id. ¶ 39.
Wright submitted a Charge of Discrimination form, dated December 26, 2009, to both the Maryland Commission on Human Relations and the U.S. Equal Employment Opportunity Commission ("EEOC"). Id. ¶ 42; ECF 14-2 (Charge form). It stated, in part, ECF 14-2:
Since approximately December 2008, I have been subjected to harassment and intimidation in an effort to remove me from my position. On March 31, 2009, I was offered a newly created position which I refused to take. On July 9, 2009, I received a negative performance evaluation. My employment has been threatened by the Director, Kerry Ahern-Brown. Another Black supervisor is being treated in the same manner for also refusing to give up her position.
* * *
I believe I have been discriminated against in violation of Title VII of the Civil Rights Act of 1964, as amended, regarding harassment and intimidation because of my race, Black. I further believe my employer's actions are in retaliation for my involvement in a protected activity in violation of Section 704(a) of the statute.
The Charge of Discrimination form includes ten check-box options where a petitioner can indicate one or more grounds of the alleged discrimination. Wright selected the boxes labeled "RACE" and "RETALIATION"; she did not select any of the other options, including "SEX." Id. On the form, Wright alleged that the discrimination occurred between December 6, 2008, and November 27, 2009, and checked the box for "CONTINUING ACTION." Id.
The EEOC investigated Wright's complaint and, on March 6, 2012, it issued a Determination. According to Wright, the EEOC found reasonable cause to believe that DSS, Sturgill, and Ahern-Brown had subjected her to unlawful discrimination, harassment, intimidation, and retaliation. Am. Compl. ¶ 42 (citing id. Ex.1, EEOC's Determination). The EEOC issued a right-to-sue notice dated September 12, 2012. See id. (citing Am. Compl. Ex.2, EEOC Notice of Right to Sue).
In January 2012, Wright interviewed at DSS for the position of "Human Service Administrative II." Id. ¶ 40. According to Wright, only four individuals were qualified for the job: three African-Americans, including Wright, all of whom interviewed for the position, and a Caucasian, who declined to do so despite encouragement from Ahern-Brown. See id. ¶¶ 40-41. Yet, none of the African-American candidates was hired. Id. ¶ 41. Wright posits that DSS lowered the job standards and later hired a Caucasian for the position. Id. 
This suit followed on December 7, 2012, within 90 days of the EEOC's right-to-sue letter, dated September 12, 2012. See ECF 8-4.
A. Standard of Review
Defendants' Motion is styled as a motion to dismiss under Fed.R.Civ.P. 12(b)(6) or, in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56. See Def. Mot. at 1; Def. Mem. at 5-6. Several documents are appended to the Motion.
Ordinarily, a court "is not to consider matters outside the pleadings... when ruling on a motion to dismiss." Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007); see Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013). However, a motion styled in the alternative, i.e., to dismiss or for summary judgment, implicates the court's discretion under Fed.R.Civ.P. 12(d) to consider matters outside of the pleadings and, in doing so, to treat the motion as one for summary judgment. See Kensington Vol. Fire Dep't, Inc. v. Montgomery Cnty., 788 F.Supp.2d 431, 436-37 (D. Md. 2011), aff'd, 684 F.3d 462 (4th Cir. 2012); see Def. Mem. at 5. A district judge has "complete discretion to determine whether or not to accept the submission of any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not consider it." 5C Wright & Miller, Federal Practice & Procedure § 1366, at 159 (3d ed. 2004, 2011 Supp.). But, this discretion "should be exercised with great caution and attention to the parties' procedural rights." Id. at 149. In general, courts are guided by whether consideration of extraneous material "is likely to facilitate the disposition of the action, " and "whether discovery prior to the utilization of the summary judgment procedure" is necessary. Id. at 165-67.
Where, as here, the movant expressly captions the motion "in the alternative, " to dismiss or for summary judgment, and submits materials outside the pleadings for the court's consideration, the parties are deemed to be on notice that conversion under Rule 12(d) may occur; the court "does not have an obligation to notify parties of the obvious." Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998). If the court determines to treat the motion as one for summary judgment, "[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed.R.Civ.P. 12(d).
Nevertheless, summary judgment is ordinarily inappropriate "where the parties have not had an opportunity for reasonable discovery." E. I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011). In that circumstance, however, "the party opposing summary judgment cannot complain that summary judgment was granted without discovery unless that party had made an attempt to oppose the motion on the grounds that more time was needed for discovery.'" Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) (quoting Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996)).
To raise adequately the issue that discovery is needed, the non-movant typically must file an affidavit or declaration pursuant to Rule 56(d) (formerly Rule 56(f)), explaining why, "for specified reasons, it cannot present facts essential to justify its opposition" without needed discovery. Fed.R.Civ.P. 56(d); see Harrods, 302 F.3d at 244-45 (discussing affidavit requirement of former Rule 56(f)). "Rule 56(d) affidavits cannot simply demand discovery for the sake of discovery.'" Hamilton v. Mayor & City Council of Baltimore, 807 F.Supp.2d 331, 342 (D. Md. 2011) (quoting Young v. UPS, 2011 WL 665321, at *20 (D. Md. Feb. 14, 2011)). "Rather, to justify a denial of summary judgment on the grounds that additional discovery is necessary, the facts identified in a Rule 56 affidavit must be essential to [the] opposition.'" Nguyen v. CNA Corp., 44 F.3d 234, 242 (4th Cir. 1995) (citation omitted). A non-moving party's Rule 56 request for additional discovery is properly denied "where the additional evidence sought for discovery would not have by itself created a genuine issue of material fact sufficient to defeat summary judgment." Strag v. Bd. of Trs., Craven Cmty. Coll., 55 F.3d 943, 954 (4th Cir. 1995); see Amirmokri v. Abraham, 437 F.Supp.2d 414, 420 (D. Md. 2006), aff'd, 266 F.Appx. 274 (4th Cir. 2008), cert. denied, 555 U.S. 885 (2008).
To be sure, the Fourth Circuit has "not always insisted" on a Rule 56(d) affidavit. Harrods, 302 F.3d at 244. Although the Fourth Circuit places "great weight'" on the Rule 56(d) affidavit, failure to file an affidavit may be excused "if the nonmoving party has adequately informed the district court that the motion is premature and that more discovery is necessary" and the "nonmoving party's objections before the district court served as the functional equivalent of an affidavit.'" Id. at 244-45 (internal citations omitted). Moreover, a non-moving party's failure to file a Rule 56(d) affidavit cannot obligate a court to issue a summary judgment ruling that is obviously premature. See Sager v. Hous. Com'n of Anne Arundel County, 855 F.Supp.2d 524, 543 n.26 (D. Md. 2012); see also Booth v. Maryland Dept. of Public Safety & Correctional Services, 2006 WL 1896180, at *10 (D. Md. July 7, 2006). But, if a non-moving party believes that further discovery is necessary before consideration of summary judgment, a party who fails to file a Rule 56(d) affidavit does so at his peril, because "the failure to file an affidavit... is itself sufficient grounds to reject a claim that the opportunity for discovery was inadequate." Harrods, 302 F.3d at 244 (some internal quotation marks omitted).
In her Opposition, Wright maintains that her allegations are sufficient to create a genuine issue of material fact. See, e.g., Opp. at 8, 14, 16, 17, 18, 21. But, she does not argue that discovery is needed or that summary judgment would be premature. As noted, Wright attached her Affidavit of May 17, 2013 to the Opposition. Wright Aff. (ECF 17-1). The Affidavit, however, is not a Rule 56(d) affidavit; it makes no mention of a need for further information or discovery. Id. Instead, the Affidavit contains substantive allegations that, as noted earlier, do little to enhance those already raised in the Amended Complaint. See Note 7, supra. 
Several legal issues are adequately framed by the facts alleged in the Amended Complaint. Only a portion of defendants' arguments depend on documents attached to the Motion. As discussed, infra, some of those documents may be considered in connection with a Rule 12(b)(6) motion to dismiss. Moreover, other documents not subject to consideration under a Rule 12(b)(6) standard are unnecessary, as the counts to which they pertain may be disposed of on other grounds. Accordingly, in the exercise of my discretion, I decline to convert the Motion to one for summary judgment and instead will treat it as a motion to dismiss.
To survive a Rule 12(b)(6) motion, a complaint must satisfy the pleading standard articulated in Fed.R.Civ.P. 8(a)(2), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." The purpose of the rule is to provide the defendant with "fair notice" of the claim and the "grounds" for entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 & n.3 (2007). That showing must consist of more than "a formulaic recitation of the elements of a cause of action" or "naked assertion[s] devoid of further factual enhancement." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted); see Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). Rather, to defeat a motion under Rule 12(b)(6), a complaint must contain facts sufficient to "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570; see Iqbal, 556 U.S. at 684 ("Our decision in Twombly expounded the pleading standard for all civil actions'....") (citation omitted); see also Epps v. JP Morgan Chase Bank, N.A., 675 F.3d 315, 320 (4th Cir. 2012); Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d 754, 768 (4th Cir. 2011). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n]'-that the pleader is entitled to relief.'" Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).
"Determining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. "A court decides whether this standard is met by separating the legal conclusions from the factual allegations, assuming the truth of only the factual allegations, and then determining whether those allegations allow the court to reasonably infer" that the plaintiff is entitled to relief. A Society Without A Name v. Virginia, 655 F.3d 342, 346 (4th Cir. 2011), cert. denied, ___ U.S. ___ , 132 S.Ct. 1960 (2012). Dismissal "is inappropriate unless, accepting as true the well-pled facts in the complaint and viewing them in the light most favorable to the plaintiff, the plaintiff is unable to state a claim to relief....'" Brockington v. Boykins, 637 F.3d 503, 505-06 (4th Cir. 2011) (citation omitted). See Hartmann v. Calif. Dept. of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013) ("Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.'") (citation omitted); Commonwealth Prop. Advocates, LLC v. Mortg. Elec. Reg. Sys., Inc., 680 F.3d 1194, ...