United States District Court, D. Maryland
Lipton Hollander United States District Judge.
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; 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 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. 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”). Plaintiff submits many exhibits with his
Complaint. See ECF 1-1 through ECF 1-20.
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.
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.
Factual and Procedural Background
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.
is part of the Maryland Department of Transportation. ECF 1,
¶ 20. It employs approximately 3, 200
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.
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.
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.
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.
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.
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.
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.
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.
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. As a result of
that complaint, Rogers was “forced . . . to pick an
alternative vacation week.” Id. ¶ 53.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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, 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.
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.
“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.
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.
January 19, 2016, plaintiff filed a Charge of Discrimination
with the Maryland Commission on Civil Rights 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,
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.
facts are included in the Discussion.
Standard of Review
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).
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.
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).
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).
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.
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.
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).
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.
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.
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,
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)).
I decline to convert the Motion to one for summary judgment.
Instead, I shall construe it as a motion to dismiss under
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,
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)
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).
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).
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
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).
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).
“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.
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).
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.
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
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.
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.