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Whitaker v. Maryland Transit Administration

United States District Court, D. Maryland

February 14, 2018



          Ellen Lipton Hollander United States District Judge.

         In this employment discrimination case, plaintiff Eric Whitaker has filed suit against a host of defendants: his employer, the Maryland Transit Administration (“MTA”); Paul Comfort, individually and in his official capacity as the MTA Administrator;[1] as well as Richard Simmons, Robert Gilman, Richard Stelmack, Keith Stewart, and Eric Bowser, individually and in their official capacities as plaintiff's supervisors at the MTA. ECF 1 (“Complaint”).[2]

         The Complaint contains five counts against all defendants. In Count One, plaintiff asserts a claim of race discrimination, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), codified, as amended, at 42 U.S.C. §§ 2000e et seq. Count Two asserts claims of retaliation under Title VII and the Age Discrimination in Employment Act (“ADEA”), codified, as amended, at 29 U.S.C. §§ 621 et seq.[3] Count Three alleges hostile work environment, in violation of Title VII, the ADEA, and the Rehabilitation Act of 1973, codified, as amended, at 29 U.S.C. §§ 791 et seq. Plaintiff alleges a violation of the “Equal Pay Act” in Count Four, based on his race. Because plaintiff does not provide a statutory citation, it is unclear whether this claim is raised under federal or Maryland law. Count Five asserts a claim under Maryland law for intentional infliction of emotional distress (“IIED”).[4] Plaintiff submits many exhibits with his Complaint. See ECF 1-1 through ECF 1-20.

         Defendants have filed a prediscovery motion to dismiss, or in the alternative, for summary judgment (ECF 21), supported by a memorandum of law (ECF 21-1) (collectively, “Motion”) and multiple exhibits. See ECF 21-3 through ECF 21-10. Plaintiff opposes the Motion (ECF 22) and has submitted a memorandum of law (ECF 22-1) (collectively, “Opposition”) and various exhibits. See ECF 22-2 through 22-8. Defendants have replied (ECF 23, “Reply) and have submitted an additional exhibit. See ECF 23-1.

         The Motion is fully briefed, and no hearing is necessary to resolve it. See Local Rule 105.6. I shall construe the Motion as one to dismiss under Rule 12(b)(6). For the reasons stated below, I conclude that plaintiff's claims under the ADEA (Counts Two and Three) are barred by sovereign immunity. Under Title VII, the ADEA, and the Rehabilitation Act, plaintiff may not proceed against Comfort, Simmons, Gilman, Stelmack, Stewart, and Bowser in their individual capacities (Counts One, Two, Three, and Four). Plaintiff's Title VII claims for race discrimination (Counts One and Four) and hostile work environment (Count Three) are subject to dismissal for failure to exhaust administrative remedies. Moreover, I am satisfied that plaintiff has abandoned his “Equal Pay Act” claim (Count Four). Further, with respect to plaintiff's claim of hostile work environment under the Rehabilitation Act (Count Three) and the claim of IIED (Count Five), plaintiff has failed to state a claim. As to the claim of retaliation under Title VII against the MTA and the individual defendants in their official capacities (Count Two), I shall deny the Motion as to the MTA, Comfort, Simmons, and Bowser, but grant it as to Gilman, Stelmack, and Stewart.

         I. Factual and Procedural Background[5]


         Plaintiff is African-American. ECF 1, ¶ 78. It appears that he was 57 years of age when he filed suit. See ECF 1-5. Whitaker began working for the MTA on April 3, 1989, as a Bus Mechanic. ECF 1, ¶ 22. At some point in 2001, plaintiff became an “‘A' Repairman Electro-Mechanic, ” the position he held when suit was filed. Id. ¶¶ 4, 22, 65. Plaintiff does not detail the job duties of an “‘A' Repairman Electro-Mechanic.” However, he claims that he has “experienced disparate treatment in work distributions, advancement opportunities and training programs” since 1989. ECF 1, ¶ 23.[6]

         The MTA is part of the Maryland Department of Transportation. ECF 1, ¶ 20.[7] It employs approximately 3, 200 individuals. Id.

         When plaintiff filed suit, Comfort served as the Administrator of the MTA, and Simmons, Gilman, Stelmack, Stewart, and Bowser were management employees of the MTA. Id. ¶¶ 7-12. Stelmack appears to have been plaintiff's first supervisor in the MTA's Bus Facilities Maintenance Department, where plaintiff worked as an “‘A' Repairman Electro-Mechanic” from an unspecified date in 2001 until October 27, 2014. See ECF 1 ¶¶ 24, 29-30, 65-67. Simmons appears to have been plaintiff's second supervisor in the Bus Facilities Maintenance Department. ECF 1, ¶¶ 65-67. He supervised plaintiff on October 27, 2014, when plaintiff was preparing to transfer from the Bus Facilities Maintenance Department to the Metro Facilities Maintenance Department. Id. Upon transfer, Bowser became plaintiff's supervisor in the Metro Facilities Maintenance Department. Id. ¶ 67. Gilman managed the Heating, Ventilation, and Air Conditioning (“HVAC”) Technicians in the Metro Facilities Maintenance Department. Id. ¶ 32. A “few years” after plaintiff began working under Stelmack in the Bus Facilities Maintenance Department in 2001, plaintiff unsuccessfully applied for an HVAC Technician position supervised by Gilman. Id. ¶¶ 32-37. Although Stewart is named as a defendant, plaintiff alleges no facts that pertain to him. See ECF 1.

Plaintiff is a member of the Amalgamated Transit Union, Local 1300 (“Union”), which has entered into a collective bargaining agreement (“CBA”) with the MTA. Id. ¶ 21. Among other things, the CBA governs the rate of pay for MTA employees. Id. ¶ 21. Plaintiff alleges that the MTA has not compensated him “in accordance with the terms of the CBA.” ECF 1, ¶ 54. He contends that he is a certified welder and that “‘A' Repairman Electro-Mechanics” who are “certified welders” are entitled to “skilled trades pay, ” pursuant to the CBA. Id. ¶¶ 54, 57, 58, 61.


         According to plaintiff, in 2001 there were two “‘A' Repairman Electro-Mechanic” positions open in the Bus Facilities Maintenance Department, and he “submitted a bid” for the position in September 2001. Id. ¶ 24. Plaintiff alleges that he was the most senior, qualified MTA applicant, and the CBA requires the MTA to fill vacant positions with the most senior, qualified employee applicant. Id. ¶ 25. Nevertheless, both positions were filled by Caucasian applicants with less seniority. Id. At an unspecified date, plaintiff filed a grievance with the Union and was thereafter awarded one of the vacant “‘A' Repairman Electro-Mechanic” positions in the Bus Facilities Maintenance Department. Id. ¶ 26.

         Stelmack became plaintiff's supervisor in 2001, when plaintiff began working as an A” Repairman Electro-Mechanic in the Bus Facilities Maintenance Department. Id. ¶¶ 24-26, 29. Stelmack allegedly told plaintiff that he “would assign Plaintiff the nastiest and dirtiest jobs to break his spirit . . . .” Id. ¶ 30.

         At an unspecified date, a “few years” after plaintiff became an “‘A' Repairman Electro-Mechanic” in 2001, Whitaker applied for a vacant HVAC Technician position in the Metro Facilities Maintenance Department. Id. ¶¶ 24, 32. Gilman was the “Facilities Maintenance manager” at that time. Id. ¶ 32. Whitaker alleges that Gilman told plaintiff that he “would do everything in his power to keep Plaintiff from getting the HVAC technician position because Mr. Gilman was in the process of training his son (Caucasian) for the position.” Id.

         The HVAC Technician position required an applicant to pass “a test.” Id. ¶ 33. Although plaintiff took the test, he claims that unnamed MTA supervisors and managers “deliberately and maliciously withheld Plaintiff's test results.” Id. Plaintiff complained to Brian Williams, MTA's Director of Labor and Employee Relations, that his test results were being withheld (“Williams Complaint”). Id. ¶ 34. Then, the “MTA rescinded the HVAC technician vacancy”, in retaliation for plaintiff lodging the Williams Complaint. Id. ¶ 35. Additionally, plaintiff alleges that, “at the request of Mr. Gilman, ” and in retaliation for the Williams Complaint, the requirements for the HVAC Technician position were altered to render plaintiff ineligible for that position. Id. ¶ 36. He also states that MTA “management made attempts to help Mr. Gilman's son” obtain the “new qualifications.” Id. ¶ 37.

         Plaintiff asserts that, on an unspecified date, MTA management “mark[ed] up his clean personnel record by falsely alleging that Plaintiff disobeyed direct orders.” ECF 1, ¶ 39. In particular, plaintiff avers that an unidentified “supervisor” threatened to take plaintiff “out of service” for his refusal to drive an MTA “service vehicle” that “failed to meet the State of Maryland's safety standards.” Id. ¶ 40. Additionally, plaintiff asserts that, on an unspecified date, an unidentified “supervisor” denied plaintiff's “requested vacation day”, in violation of “MTA seniority policy.” Id. ¶ 41. Moreover, plaintiff alleges that, at an unspecified time, an unnamed “supervisor” required plaintiff to “perform work” that similarly situated Caucasian “‘A' Repairman Electro-Mechanics” “were not ordered to perform.” Id. ¶ 42.


         Whitaker claims that he filed a “racial discrimination complaint” in October 2011 in the MTA Office of Fair Practice (“MTA Complaint”). ECF 1, ¶ 43. Plaintiff does not specify the allegations. According to plaintiff, MTA “management” retaliated against plaintiff for the MTA Complaint by “installing a window in Plaintiff's office.” Id. ¶ 44. Whitaker does not identify the MTA “management.” But, he states that after he “covered the window for privacy, ” he was required to “remove the cover” by MTA management. Id. ¶ 45. In contrast, MTA management allowed a Caucasian coworker to paint his own window black. Id. ¶ 46.

         In June 2012, plaintiff filed a Charge of race discrimination with the Maryland Commission on Civil Rights against the MTA (“2012 Charge”). Id. ¶ 48; see also ECF 1-6 (PreDetermination Settlement Agreement of January 10, 2013). Plaintiff does not specify the allegations. See ECF 1. But, he avers that a hearing was held in January 2013, which “concluded in his favor.” Id. ¶ 48. Plaintiff states that the “MTA agreed that plaintiff was eligible for welding training.” Id. ¶ 49; see also ECF 1-6, ¶ 4.

         Whitaker asserts that, in retaliation for the 2012 Charge, the MTA denied his “2014 vacation schedule” request, but granted the vacation request of a Caucasian coworker with less seniority than plaintiff. ECF 1, ¶ 51. Additionally, plaintiff claims that Simmons “allowed” a Caucasian employee, Jimmy Rogers, to obtain Rogers's preferred vacation schedule, in violation of the CBA. Id. ¶ 52. And, plaintiff avers that, on an unspecified date, he filed a “complaint with the Office of Civil Rights” that raised plaintiff's concerns about the denial of his requested vacation time. Id. ¶ 53.[8] As a result of that complaint, Rogers was “forced . . . to pick an alternative vacation week.” Id. ¶ 53.


         As noted, plaintiff became an “‘A' Repairman Electro-Mechanic” in 2001. Id. ¶¶ 22, 24, 65. Without specifying a particular point in time, plaintiff avers that the MTA submitted a “recommendation” that “certain Caucasian ‘A' Repairman Electro-Mechanics” obtain welding training. Id. ¶ 38. Plaintiff asserts that African-American “‘A' Repairman Electro-Mechanics” were not recommended for such training. Id. And, plaintiff claims that the “MTA deliberately left Plaintiff off the list” of employees who were eligible to receive welding training. Id. ¶ 49. Nevertheless, plaintiff “attended and completed a welding course on November 11, 2013.” ECF 1, ¶ 63. According to plaintiff, an “‘A' Repairman Electro-Mechanic” who obtains a welding certificate is entitled to “skilled trades pay” at a rate of $28.55 per hour. ECF 1, ¶¶ 61, 63.

         Plaintiff claims that, prior to 2011, the MTA granted skilled trades pay to Caucasian “‘A' Repairman Electro-Mechanics, ” but not African-American “‘A' Repairman Electro-Mechanics.” Id. ¶ 58. Further, plaintiff alleges that some of the Caucasian “‘A' Repairman Electro-Mechanics” who received skilled trades pay before 2011 did not have welding certificates. Id. ¶¶ 58-59.

         Whitaker avers that, at an unspecified date, the Union filed a grievance against the MTA based on the MTA's “refusal to pay skilled trades pay to ‘A' Repairman Electro-Mechanics who were certified welders.” Id. ¶ 55. The MTA and the Union reached an agreement in May 2009 that “directly apply [sic] to the Plaintiff.” Id. Arbitration followed. Id. ¶ 56; see ECF 1-8 (Arbitration Decision of January 19, 2011). The Arbitration Decision states that “the Grievants . . . who have been working as welders for the MTA” and who were “tested and certified . . . prior to May 2009” are “entitle to Skilled Trades pay.” ECF 1-8 at 28-29. But, the Arbitration Decision also states that “whether other welders . . . are entitled to Skilled Trades pay is remanded” to the MTA and the Union. Id. at 29.

         Plaintiff asserts: “Pursuant to the 2011 arbitration findings, MTA was ordered to compensate Plaintiff with back pay for skilled trades pay and to increase his hourly rate of pay to the skilled pay rate of $28.55” per hour. ECF 1, ¶ 61. But, plaintiff does not appear to have been among the “‘A' Repairman Electro-Mechanics” who were subject to the arbitration award of 2011. See ECF 1-8 at 28-29. As noted, only “‘A' Repairman Electro-Mechanics” who were “working as welders for the MTA” and who were “tested and certified” in welding before May 2009 were entitled to skilled trades pay. Id. And, plaintiff did not become a certified welder until 2013. ECF 1, ¶ 63.

         On October 27, 2014, Whitaker voluntarily transferred from the Bus Facilities Maintenance Department to the Metro Facilities Maintenance Department. Id. ¶ 65. However, plaintiff's job did not change. Id. ¶¶ 65, 70-71. He remained an “‘A' Repairman Electro-Mechanic”, but worked in the Metro Facilities Maintenance Department. Id. Plaintiff alleges that he was the only African-American in the Metro Facilities Maintenance Department when he transferred in October 2014. Id. ¶ 78.

         From the time plaintiff became certified as a welder on November 11, 2013, until the time he transferred to the Metro Facilities Maintenance Department on October 27, 2014, he received the skilled trades pay rate of $28.55 per hour. Id. ¶¶ 63, 67. Upon Whitaker's transfer in October 2014, Simmons, Whitaker's manager in the Bus Facilities Maintenance Department, completed an administrative document called an “AS-1, ” dated October 27, 2014. See ECF 1, ¶ 66; ECF 1-14, (“Initial AS-1 Form”). It stated, inter alia, that plaintiff's job title in the Bus Facilities Maintenance Department and the Metro Facilities Maintenance Department was “‘A' Repairman Electro-Mechanic.” ECF 1-14. Additionally, it stated that plaintiff's rate of pay in both departments was $27.63.

         Plaintiff alleges that the Initial AS-1 Form “inaccurately reported” the hourly rate of pay earned by plaintiff in the Bus Facilities Maintenance Department, at the “unskilled rate” of $27.63 per hour, rather than the skilled trades rate of $28.55 per hour. ECF 1, ¶ 66; see also ECF 1-14. In other words, plaintiff asserts that when Simmons completed the Initial AS-1 Form, Simmons should have reported plaintiff's rate of pay as $28.55 per hour, rather than $27.63 per hour. ECF 1, ¶ 66.

         Bowser, plaintiff's supervisor upon his transfer to the Metro Facilities Maintenance Department on October 27, 2014, altered the Initial AS-1 Form on November 25, 2014. Id. ¶¶ 68-72; ECF 1-16 (“Revised AS-1 Form”). The Revised AS-1 Form changed the Initial AS-1 Form as follows: (1) plaintiff's job title while at the Bus Facilities Maintenance Department was changed from “A Repairman Electro-Mechanic” (ECF 1-14) to “A Repairman-Welder-Skld” (ECF 1-16); and (2) the rate of pay plaintiff earned in the Bus Facilities Maintenance Department as an “A Repairman-Welder-Skld” was changed from $27.63 (ECF 1-14) to $28.55. ECF 1-16. But, Bowser made no alterations to plaintiff's rate of pay or job title in the Metro Facilities Maintenance Department (ECF 1-16), where plaintiff earned $27.63 per hour. Id. In effect, the Revised AS-1 Form indicates that plaintiff had previously earned $28.55 in the Bus Facilities Maintenance Department but only $27.63 when he transferred to the Metro Facilities Maintenance Department. Id.

         Whitaker maintains that Bowser deprived plaintiff of skilled trades pay in the Metro Facilities Maintenance Department. Id. ¶ 72. Specifically, plaintiff contends that the Revised AS-1 Form makes it “appear as if he departed from a skilled position (‘A' Repairman Welder-Skilled) to an unskilled position (‘A' Repairman electro-Mechanic) [sic].'” Id. ¶ 69. And, Bowser allegedly made this alteration “in an attempt to strip” plaintiff “of his skilled trades pay by making it appear as if [plaintiff] had transferred into a lower paying job.” Id. ¶ 68. Therefore, Whitaker's rate of pay in the Metro Facilities Maintenance Department was at the unskilled rate of $27.63 per hour, not the skilled rate of $28.55 per hour, which he had previously earned in the Bus Facilities Maintenance Department. See Id. ¶¶ 68-72; ECF 1-16.

         According to plaintiff, he was the only “‘A' Repairman Electro-Mechanic” in the Metro Facilities Maintenance Department who was eligible for skilled trades pay because he was the only one with a welding certificate, yet he was the only one who did not receive skilled trades pay at the time of his transfer. ECF 1, ¶ 78. He claims that Caucasian “‘A' Repairman Electro-Mechanics” in the Metro Facilities Maintenance Department who were not certified welders “had been receiving skilled trades pay prior to the Plaintiff's transfer[.]” Id. ¶ 75. Further, he states that the “MTA never required certification from Caucasian ‘A' Repairman Electro-Mechanics” before plaintiff transferred to the Metro Facilities Maintenance Department on October 27, 2014. Id. ¶ 79.

         Plaintiff filed “a grievance for his skilled trades pay” on an unspecified date. Id. ¶ 76. Although plaintiff does not specify where the grievance was filed, it appears that the grievance was filed with the Union on December 10, 2014. ECF 1-17 (“2014 Union Grievance”). Plaintiff claimed that the MTA was wrongly depriving him of skilled trades pay. Id. ¶¶ 72-73; see also ECF 1-17; ECF 1-18 (“Grievance Decision”).

         In the Grievance Decision, dated February 5, 2015, Keith Jenkins, MTA Manager of Administration, found that Whitaker qualified as an “A-Repairman with welding skills” and was therefore entitled to back pay for the period of time that he worked in the Metro Facilities Maintenance Department without skilled trades pay, beginning October 27, 2014. Id. But, Jenkins also found that the “MTA may elect not to have certified welders in the Metro Facilities Maintenance department . . . .” Id. And, Jenkins found that if the MTA made such an election, Whitaker “would no longer be considered for skilled pay.” Id.

         Additionally, plaintiff alleges that after he filed the 2014 Union Grievance, the MTA withdrew skilled trades pay from plaintiff's Caucasian coworkers in the Metro Facilities Maintenance Department. Id. ¶ 76. This was done “in an attempt to cover up [MTA's] wrongful payments” to those coworkers (id.) and “to mask [MTA's] racial discrimination against” plaintiff. Id. ¶ 77.

         In “March 2015”, Whitaker received a check for back pay, at the skilled trades rate, for the hours he worked between “the date of his welding certification through the date of the check.” Id. ¶ 74; see ECF 1-13 (check dated March 13, 2015, from MTA to Whitaker, in the amount of $317.61). But, Whitaker states that the MTA did not thereafter compensate him at the skilled trades rate of $28.55 per hour. ECF 1, ¶ 74. Further, plaintiff alleges that “as late as November 2016, ” the hourly pay rate of his Caucasian coworkers was adjusted to reflect the skilled trades pay rate. Id. ¶ 80. However, as of the date Whitaker filed suit, he alleges that he continued to receive the unskilled pay rate of $27.63 per hour. Id.

         As a result of “constant and continuous harassment, retaliation and malicious behavior . . . by MTA management, ” plaintiff claims that he “has suffered from anxiety-related illnesses.” ECF 1, ¶ 47. Plaintiff does not specify when his anxiety-related illnesses commenced or the duration of the afflictions. See ECF 1; ECF 1-5 (medical evaluation). A medical evaluation dated March 4, 2015, included as an exhibit to the suit, indicates that plaintiff did not disclose his anxiety related illnesses to the MTA. See ECF 1-5 at 2.


         On January 19, 2016, plaintiff filed a Charge of Discrimination with the Maryland Commission on Civil Rights[9] against the MTA. ECF 1-1 (“2016 Charge”); see also ECF 1, ¶ 17. In the 2016 Charge, plaintiff alleged that the MTA decreased his pay from $28.55 an hour to $27.63 an hour in retaliation for a “race and retaliation discrimination charge” that plaintiff filed “[a]round April 2012.” Presumably, the charge plaintiff filed “[a]round April 2012” (ECF 1-1) is the June 2012 Charge, described supra. See also ECF 1, ¶ 48.

         On November 30, 2016, the Equal Employment Opportunity Commission (“EEOC”) issued a Dismissal and Notice of Rights to plaintiff. ECF 1-4; see also ECF 1, ¶ 19. This suit followed on February 28, 2017. ECF 1.

         Additional facts are included in the Discussion.

         II. Standard of Review


         As noted, defendants have moved to dismiss or, in the alternative, for summary judgment. ECF 21. A motion styled in the alternative, to dismiss or for summary judgment, implicates the court's discretion under Rule 12(d) of the Federal Rules of Civil Procedure. See Kensington Vol. Fire Dept., Inc. v. Montgomery Cty., 788 F.Supp.2d 431, 436-37 (D. Md. 2011). Ordinarily, a court “is not to consider matters outside the pleadings or resolve factual disputes when ruling on a motion to dismiss.” Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007). However, under Rule 12(b)(6), a court, in its discretion, may consider matters outside of the pleadings, pursuant to Rule 12(d). If the court does so, “the motion must be treated as one for summary judgment under Rule 56, ” and “[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). But when, as here, the movant expressly captions its motion “in the alternative, ” as one for summary judgment, and submits matters outside the pleadings for the court's consideration, the parties are deemed to be on notice that conversion under Rule 12(d) may occur; and 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).

         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 Alan Wright & Arthur Miller, et al., Federal Practice & Procedure § 1366 (3d ed.) (hereinafter, “Wright & Miller”). 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.

         Ordinarily, summary judgment is inappropriate “where the parties have not had an opportunity for reasonable discovery.” E.I. du Pont de Nemours & Co., 637 F.3d at 448-49; see Putney v. Likin, 656 F. App'x 632, 638-640 (4th Cir. 2016) (per curiam); McCray v. Maryland Dep't of Transp., 741 F.3d 480, 483 (4th Cir. 2014) (hereinafter, “McCray”). However, “the party opposing summary judgment ‘cannot complain that summary judgment was granted without discovery unless that party has 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) (hereinafter, “Harrods”) (quoting Evans v. Tech's. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996)); see also Dave & Buster's, Inc. v. White Flint Mall, LLLP, 616 F. App'x 552, 561 (4th Cir. 2015).

         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, [he] 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 the affidavit requirement of former Rule 56(f)). A non-moving party's Rule 56(d) 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. App'x 274 (4th Cir. 2008), cert. denied, 555 U.S. 885 (2008).

         If a non-moving party believes that further discovery is necessary before consideration of summary judgment, the 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 (quoting Evans, 80 F.3d at 961); see also Dave & Buster's, Inc., 616 F. App'x at 561. But, the non-moving party's failure to file a Rule 56(d) affidavit does not obligate a court to issue a summary judgment ruling that is obviously premature. Although the Fourth Circuit has placed “‘great weight'” on the Rule 56(d) affidavit, and has said that a mere “‘reference to Rule 56(f) [now Rule 56(d)] and the need for additional discovery in a memorandum of law in opposition to a motion for summary judgment is not an adequate substitute for [an] affidavit, '” the appellate court has “not always insisted” on a Rule 56(d) affidavit. Harrods, 302 F.3d at 244 (quoting Evans, 80 F.3d at 961). But, the failure to file an affidavit may be excused “if the nonmoving party has adequately informed the district court that the motion is pre-mature and that more discovery is necessary, ” when the “nonmoving party's objections before the district court ‘served as the functional equivalent of an affidavit', ” and if the nonmoving party “was not lax in pursuing discovery.” Harrods, 302 F.3d at 244-45 (quoting First Chicago Int'l v. United Exchange Co., LTD, 836 F.2d 1375, 1380-81 (D.C. Cir. 1988)).

         Whitaker did not file an affidavit or declaration under Fed.R.Civ.P. 56(d). But, he argues that he has not had an adequate opportunity for discovery (ECF 22-1 at 4) and that summary judgment before discovery would be premature. See, e.g., ECF 22, ¶ 7; see also ECF 22-1 at 4, 23-24, 34. Additionally, plaintiff argues that converting the Motion to one for summary judgment would unfairly prejudice him, given the “evidence that remains outstanding.” ECF 22-1 at 4. Further, plaintiff argues that he has “outstanding requests” for an EEOC investigation report, his medical records, and “other evidence which supports allegations contained in Plaintiff's Complaint.” Id. at 23. In relation to his Title VII retaliation claim, plaintiff argues that “summary judgment without the parties having an opportunity to conduct discovery is inappropriate” because plaintiff “must prove that the alleged “adverse employment action” was in retaliation for plaintiff's “‘protected activity.'” ECF 22-1 at 24.

         Harrods, 302 F.3d 214, is instructive. There, the plaintiff had not filed a Rule 56(d) affidavit. Id. But, the plaintiff had “advise[d] the district court that it needed discovery” in its opposition to the summary judgment motion. Id. at 245. The plaintiff also argued that discovery was necessary because important evidence was “‘uniquely in the possession of the defendants.'” Id. (citation omitted). The Fourth Circuit noted that discovery “was just getting under way” when the district court granted summary judgment. Id. at 246. The Court reiterated that “the proper course” for a party who “believes that more discovery is necessary for it to demonstrate a genuine issue of material fact” is “to file a Rule 56(f) [now Rule 56(d)] affidavit stating ‘that it could not properly oppose a motion for summary judgment without a chance to conduct discovery.'” Id. at 244 (quoting Evans, 80 F.3d at 961).

         The Court underscored that ensuring sufficient time for discovery is “‘especially important when the relevant facts are exclusively in the control of the opposing party.'” Id. at 246-47 (quoting Wright & Miller § 2741). Additionally, the Court found that the plaintiff, in its opposition, identified two questions of material fact that required further development through discovery. Id. at 245-46. And, the Court emphasized that granting summer judgment before discovery “can be particularly inappropriate when a case involves complex factual questions about intent and motive.” Id. at 248 (citations omitted). Therefore, the Fourth Circuit concluded that the district court had acted prematurely by granting summary judgment before additional discovery. Id. at 247.

         The case of McCray, 741 F.3d 480, is also informative. In McCray, the Fourth Circuit considered whether the district court erred when it granted summary judgment to the defense before plaintiff had an opportunity to conduct discovery. Id. at 483.

         The plaintiff in McCray had been an employee of the MTA for more than 40 years before she filed an EEOC Charge alleging discrimination under, inter alia, Title VII based on race and gender. Id. at 481-82. In the district court, the MTA moved to dismiss the suit and the plaintiff moved for more time to conduct discovery, pursuant to Rule 56(d). Id. at 482. The district court denied plaintiff's Rule 56(d) motion, converted the MTA's motion to one for summary judgment, and granted summary judgment for the MTA. Id. On appeal, the Fourth Circuit reiterated that discovery is appropriate when “the main issue” is “one of motive” and when “most of the key evidence lies in the control” of the party moving for summary judgment. Id. at 484. The Fourth Circuit determined that the plaintiff's Title VII claims required the plaintiff to show “that she was fired because of discriminatory reasons, ” and that such evidence was within the control of the MTA. Id. “Absent discovery, ” said the Court, the plaintiff lacked “adequate access to this evidence, and therefore no way to shield herself from a premature summary judgment motion.” Id. The Fourth Circuit concluded that summary judgment was premature under Rule 56(d). Id. at 481, 484.

         Accordingly, I conclude that plaintiff is entitled to conduct reasonably discovery. As the Fourth Circuit stated in McCray, 741 F.3d at 483, “[s]ummary judgment before discovery forces the non-moving party into a fencing match without a sword or mask.” A party “needs an ‘adequate opportunity' to present its case and ‘demonstrate a genuine issue of material fact.'” Adams Housing, LLC v. City of Salisbury, Md., 672 F. App'x 220, 222 (4th Cir. 2016) (quoting U.S. Dev. Corp. v. Peoples Fed. Sav. & Loan Ass'n, 873 F.2d 731, 735 (4th Cir. 1989)).

         Therefore, I decline to convert the Motion to one for summary judgment. Instead, I shall construe it as a motion to dismiss under Rule 12(b)(6).


         A defendant may test the legal sufficiency of a complaint by way of a motion to dismiss under Rule 12(b)(6). In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010), aff'd sub nom., McBurney v. Young, 569 U.S. 221 (2013); Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule 12(b)(6) motion constitutes an assertion by a defendant that, even if the facts alleged by a plaintiff are true, the complaint fails as a matter of law “to state a claim upon which relief can be granted.” Whether a complaint states a claim for relief is assessed by reference to the pleading requirements of Fed.R.Civ.P. 8(a)(2). That rule provides that a complaint must contain 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 defendants with “fair notice” of the claims and the “grounds” for entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

         To survive a motion under Fed.R.Civ.P. 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 Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (citation omitted) (“Our decision in Twombly expounded the pleading standard for ‘all civil actions' . . . .”); see also Willner v. Dimon, 849 F.3d 93, 112 (4th Cir. 2017). But, a plaintiff need not include “detailed factual allegations” in order to satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555. Moreover, federal pleading rules “do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.” Johnson v. City of Shelby, ___ U.S. ___, 135 S.Ct. 346, 346 (2014) (per curiam).

         Nevertheless, the rule demands more than bald accusations or mere speculation. Twombly, 550 U.S. at 555; see Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). If a complaint provides no more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action, ” it is insufficient. Twombly, 550 U.S. at 555. Rather, to satisfy the minimal requirements of Rule 8(a)(2), the complaint must set forth “enough factual matter (taken as true) to suggest” a cognizable cause of action, “even if . . . [the] actual proof of those facts is improbable and . . . recovery is very remote and unlikely.” Twombly, 550 U.S. at 556 (internal quotation marks omitted).

         In reviewing a Rule 12(b)(6) motion, a court “must accept as true all of the factual allegations contained in the complaint” and must “draw all reasonable inferences [from those facts] in favor of the plaintiff.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations omitted); see Semenova v. MTA, 845 F.3d 564, 567 (4th Cir. 2017); Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015); Kendall v. Balcerzak, 650 F.3d 515, 522 (4th Cir. 2011), cert. denied, 565 U.S. 943 (2011). But, a court is not required to accept legal conclusions drawn from the facts. See Papasan v. Allain, 478 U.S. 265, 286 (1986). “A court decides whether [the pleading] 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 the legal remedy sought. A Society Without a Name v. Virginia, 655 F.3d 342, 346 (4th. Cir. 2011), cert. denied, 566 U.S. 937 (2012).

         Courts generally do not “‘resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses'” through a Rule 12(b)(6) motion. Edwards, 178 F.3d at 243 (quoting Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)). However, “in the relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6).” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc); accord Pressley v. Tupperware Long Term Disability Plan, 553 F.3d 334, 336 (4th Cir. 2009). Because Rule 12(b)(6) “is intended [only] to test the legal adequacy of the complaint, ” Richmond, Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993), “[t]his principle only applies . . . if all facts necessary to the affirmative defense ‘clearly appear[ ] on the face of the complaint.'” Goodman, 494 F.3d at 464 (quoting Forst, 4 F.3d at 250) (emphasis added in Goodman ).

         In evaluating the sufficiency of a complaint in connection with a Rule 12(b)(6) motion, a court ordinarily “may not consider any documents that are outside of the complaint, or not expressly incorporated therein . . . .” Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013); see Bosiger, 510 F.3d 442, 450 (4th Cir. 2007). However, a court may properly consider documents incorporated into the complaint or attached to the motion to dismiss, “‘so long as they are integral to the complaint and authentic.'” U.S. ex rel. Oberg v. Pennsylvania Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014) (quoting Philips v. Pitt Cty. Memorial Hosp., 572 F.3d 176, 180 (4th Cir. 2009)); see Anand v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir.2014); Am. Chiropractic Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004), cert. denied, 543 U.S. 979 (2004).

         Accordingly, when resolving a Rule 12(b)(6) motion, a court may consider exhibits, without converting the motion to dismiss to one for summary judgment. Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 508 (4th Cir. 2015). In particular, a court may consider documents that are “explicitly incorporated into the complaint by reference and those attached to the complaint as exhibits . . . .” Goines, 822 F.3d at 166 (citations omitted); see also U.S. ex rel. Oberg, 745 F.3d at 136; Anand, 754 F.3d at 198; Am. Chiropractic Ass'n, 367 F.3d at 234; Phillips v. LCI Int'l Inc., 190 F.3d 609, 618 (4th Cir. 1999).

         However, “before treating the contents of an attached or incorporated document as true, the district court should consider the nature of the document and why the plaintiff attached it.” Goines, 822 F.3d at 167 (citing N. Ind. Gun & Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d 449, 455 (7th Cir. 1998)). “When the plaintiff attaches or incorporates a document upon which his claim is based, or when the complaint otherwise shows that the plaintiff has adopted the contents of the document, crediting the document over conflicting allegations in the complaint is proper.” Goines, 822 F.3d at 167. Conversely, “where the plaintiff attaches or incorporates a document for purposes other than the truthfulness of the document, it is inappropriate to treat the contents of that document as true.” Id.

         A court may also “consider a document submitted by the movant that was not attached to or expressly incorporated in a complaint, so long as the document was integral to the complaint and there is no dispute about the document's authenticity.” Goines, 822 F.3d at 166 (citations omitted); see also Woods v. City of Greensboro, 855 F.3d 639, 642 (4th Cir. 2017), petition for cert. filed, No. 17-492 (Oct. 3, 2017); Kensington Volunteer Fire Dep't. v. Montgomery Cty., 684 F.3d 462, 467 (4th Cir. 2012). To be “integral, ” a document must be one “that by its ‘very existence, and not the mere information it contains, gives rise to the legal rights asserted.'” Chesapeake Bay Found., Inc. v. Severstal Sparrows Point, LLC, 794 F.Supp.2d 602, 611 (D. Md. 2011) (citation omitted) (emphasis in original).

         As noted, plaintiff submitted multiple exhibits with his Complaint. See ECF 1-1 through ECF 1-20. Several of these documents have already been discussed in the Factual and Procedural Background of this Memorandum Opinion. See ECF 1-5 (sealed medical evaluation); ECF 1-6 (Pre-Determination Settlement Agreement of January 10, 2013); ECF 1-8 (Arbitration Decision of January 19, 2011); ECF 1-13 (check dated March 13, 2015); ECF 1-14 (Initial AS-1 Form); ECF 1-16 (Revised AS-1 Form); ECF 1-17 (2014 Union Grievance); ECF 1-18 (Grievance Decision, dated February 5, 2015). Plaintiff has adopted the contents of these exhibits as true and has incorporated them into his Complaint to support his claims. See, e.g., ECF 1, ¶¶ 47, 50, 56, 65, 68, 72-74. Accordingly, the exhibits submitted with the Complaint (ECF 1-5; ECF 1-6; ECF 1-8; ECF 1-13; ECF 1-14; ECF 1-16; ECF 1-17; ECF 1-18) may be considered by the Court without converting the Motion to one for summary judgment.

         Additionally, defendants attached eight exhibits to the Motion. See ECF 21-3 (First Affidavit of Brian Williams, MTA Director of Labor Relations, signed on April 3, 2017); ECF 21-4 (Copy of an Agreement between the MTA and the Union); ECF 21-5 (spreadsheet consisting of the names and racial demographics of several MTA employees); ECF 21-6 (Union Grievance of Leroy Carpenter, Shop Steward, dated March 2015); ECF 21-7 (Hearing Decision, dated April 2016, denying the Grievance of Carpenter); ECF 21-8 (AS-1 Form of Shawn Davis, an MTA Employee); ECF 21-9 (AS-1 Form of Daniel Hoff, an MTA Employee); ECF 21-10 (AS-1 Form of Glenn Metzler, an MTA Employee). Plaintiff does not dispute the authenticity of the exhibits submitted with the Motion. See ECF 22. However, these exhibits were not incorporated in the Complaint. See ECF 1. Nor do they “give[] rise to the legal rights asserted” by plaintiff in his Complaint. See Chesapeake Bay Found., Inc., 794 F.Supp.2d at 611. Accordingly, I find that the exhibits submitted with the Motion (ECF 21-3 through ECF 21-10) are not integral to the Complaint. Therefore, I shall not consider them.

         Further, plaintiff attached multiple exhibits to his Opposition. See ECF 22-2 (Metro Facilities Maintenance Department Seniority List); ECF 22-3 (excerpt from an unidentified document concerning wage rates for several MTA employees); ECF 22-4 (affidavits of Richard Spann and Kenneth Hawkins, former MTA employees; and affidavits of Jerry Beatty, Atiba McIntosh, Edward Wood, Patrick Merrick, Kenneth Duckett, and Julius Dowe, current MTA employees); ECF 22-5 (Freedom of Information Act request submitted by plaintiff's counsel to the EEOC in February 2017); ECF 22-6 (memorandum from plaintiff's counsel to Dr. Elvira Pasmanik, dated March 2017, requesting plaintiff's medical records); ECF 22-7 (Bus Facilities Maintenance Department “Vacation Pick 2013” form); ECF 22-8 (Union Grievance filed by Ed Williams in October 1989; and a letter from Eugene Woodward, “B” Repairman Bush Division, dated February 1995). These exhibits were not incorporated in the Complaint. See ECF 1. Nor do the documents give rise to the claims made by plaintiff in his Complaint. Accordingly, I conclude that the exhibits submitted with plaintiff's Opposition are not integral to his Complaint, and I shall not consider them.

         Moreover, defendants submitted an exhibit to the Reply. See ECF 23-1 (second Affidavit of Brian Williams, MTA Director of Labor Relations, signed on April 27, 2017). Because this exhibit was not incorporated in the Complaint and does not give rise to plaintiff's claims, it is not integral to the Complaint. Accordingly, I shall not consider it.

         III. ...

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