United States District Court, D. Maryland
MADELINE M. MOREY, Plaintiff,
CARROLL COUNTY, GOVERNMENT, et. al., Defendant.
L. HOLLANDER, UNITED STATES DISTRICT JUDGE
employment discrimination case, plaintiff Madeline Morey
filed suit against defendants “Carroll County
Government” and the “Carroll County Board of
Commissioners” (collectively, “Carroll
County” or the “County”). ECF
In a First Amended Complaint (ECF 17), Morey alleges
retaliation, in violation of several statutes: Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq. (“Title VII”); 42 U.S.C. § 1981
(“§ 1981”); Title VI of the Civil Rights Act
of 1964, 42 U.S.C. § 2000d et seq.
(“Title VI”); Section 504 of the Rehabilitation
Act of 1973, 29 U.S.C. § 794 et seq.
(“Section 504”); and the Maryland Fair Employment
Practices Act (“MFEPA”), Md. Code (2014 Repl.
Vol., 2017 Supp.), § 20-601 et seq. of the
State Government Article (“S.G.”). Plaintiff
seeks both compensatory and punitive damages.
filed a pre-discovery, combined motion to dismiss in part and
motion for summary judgment. ECF 21. The motion is supported
by a memorandum of law (ECF 21-1) (collectively, the
“Motion”) and several exhibits. Plaintiff opposes
the Motion (ECF 24, “Opposition”), supported by
several exhibits. Defendants have replied. ECF 25
hearing is necessary to resolve the Motion. See
Local Rule 105.6 (D. Md. 2016). For the reasons stated below,
I shall grant the Motion in part and deny it in part.
County hired plaintiff on May 28, 2013, to serve as its
“Director of the Department of Citizen Services.”
ECF 17, ¶ 16. Plaintiff's responsibilities included
supervising 60 to 70 employees and overseeing
“Transit”; the Aging and Disabilities Bureau; the
Bureau of Housing; Children Services for Carroll County; and
Coordinator with regard to the Americans with Disabilities
Act. ECF 17, ¶¶ 17-18. A department within the
Bureau of Housing, known as the Public Housing Authority,
“receives federal funding from [the] U.S. Department of
Housing and Urban Development (‘HUD') to administer
the Section 8 Housing Choice voucher program.” ECF 21-4
(Affidavit of Danielle Yates, Chief of the County's
Bureau of Housing and Community Connections), ¶¶ 3,
4. The federal funding is known as “Housing Assistance
Payment (‘HAP').” Id. at ¶ 4..
September 2014, plaintiff received a complaint from an
employee, Janet Boyd, who informed plaintiff that other
employees “were engag[ing] in intentional racial
discrimination and disability discrimination, ” which
was allegedly in violation of Title VI, Title VII, and §
504. ECF 17, ¶¶ 19-20. Specifically, Ms. Boyd
informed plaintiff that “‘people who are of
another race, in poverty or need accommodation for a
disability [are] viewed as an annoyance' and were denied
County benefits under programs receiving federal financial
assistance.” Id. ¶ 21 (brackets in ¶
21). Thereafter, plaintiff reported the complaints to the
County's Human Resources Department (“HR”).
Id. ¶ 23.
later, on October 2, 2014, “a former Bureau of Housing
employee, ” Lena Bauerlein, informed plaintiff that
“her coworkers, [particularly Rita Zimmerman], had
created a hostile work environment in the Bureau . . . and
that Ms. Bauerlein believed she had been discriminated
against based on her religious beliefs (Buddhism).”
Id. ¶ 24. Again, plaintiff reported these
complaints to HR. Id. ¶ 25. Thereafter, on
October 27, 2014, “a County housing recipient”
reported to plaintiff that County employees were
discriminating against her “because of her race and
because her Daughter is a disabled person under the meaning
of the Americans with Disabilities Act
[“ADA”].” Id. ¶ 26. Upon
further investigation, plaintiff discovered that the housing
recipient, who is Jewish, was asked to provide additional
income documentation that “other non-Jewish
[non-disabled, ] housing recipients and County employees were
not required to provide[.]” Id. ¶¶
28-29. Plaintiff also discovered that Rita Zimmerman, the
Deputy Director of Citizen Services, was ignoring the
recipient's calls. ECF 17, ¶ 28.
at an unspecified time, but apparently prior to July 1, 2015,
plaintiff made additional reports to HR, including: (1) Ms.
Boyd had observed Bureau of Housing employees “failing
to provide accommodations to people with disabilities and
denying services to housing recipients based on [their]
race”; (2) Ms. Boyd “was retaliated against for
opposing discriminatory practices”; (3) Ms. Bauerlein
was terminated because “she had complained about how
staff recipients were being treated.” Id.
1, 2015, in light of plaintiff's “excellent
performance, ” defendants gave plaintiff a four-year
contract extension, through June 30, 2019, along with a pay
raise. Id. ¶¶ 35-36. Later that month,
female members of plaintiff's staff complained to
plaintiff that, under defendants' Grant Contingent
Employment Policy (the “Policy”), females were
treated “differently” from male employees, and
“female County employees . . . earn[ed] less money than
similarly situated male County employees.” Id.
¶ 38. On July 29, 2015, upon discovering that the Policy
did, in fact, cause female employees to earn less than male
employees, see Id. ¶ 39, plaintiff complained
about the Policy to the County Administrator, Roberta
Windham. Id. ¶ 40. The following day, July 30,
2015, plaintiff filed a written complaint with HR regarding
the disparate treatment of the female employees. Id.
County employee, Dorothy Miles, reported to plaintiff on
August 19, 2015, that “employees under Plaintiff's
supervision were creating a hostile work environment.”
Id. ¶ 42. Ms. Miles, who is Caucasian, is
married to an African American male and has biracial
children. Id. ¶ 43. Ms. Miles told plaintiff
that, as a result of her marriage, employees Zimmerman and
Loretta Pressimone, Ms. Miles's supervisors, were
discriminating against her, “had made inappropriate
racial comments, ” and were treating “County
constituents differently based on race.” Id.
¶¶ 43-44. On August 25, 2015, plaintiff notified HR
of Ms. Miles's complaints, id. ¶ 45, and on
September 16, 2015, plaintiff directly informed Kim Frock,
the HR Director. Id. ¶ 46.
was terminated on September 17, 2015. Id. ¶ 47.
Ms. Miles was subsequently terminated. Id. At the
time of plaintiff's termination, Windham told plaintiff
that “the County was ‘planning a
re-organization.'” Id. ¶ 49. And, the
County told the Maryland Department of Labor, Licensing and
Regulation, Division of Unemployment Insurance
(“DLLR”), that plaintiff's position was
“eliminated pursuant to reorganization.”
Id. ¶ 50. Moreover, the County stated that
plaintiff was terminated for
“‘no-cause.'” Id. ¶ 51.
As a result, the County was not required to provide plaintiff
with the opportunity to improve her work performance.
Id. ¶¶ 54-55. Yet, plaintiff “was
the only employee affected by the
‘reorganization.'” Id. ¶ 61.
Moreover, Frock, the HR Director, asserts in her Affidavit
(ECF 21-6) that plaintiff “was terminated for reasons
related to her job performance, namely her lack of
accessibility and ineffective leadership.” Id.
October 1, 2015, plaintiff filed a charge (the
“Charge”) with the Equal Employment Opportunity
Commission (“EEOC”) and the Maryland Commission
on Civil Rights. Id. ¶ 81.She also asserts
substantial compliance with the Maryland Local Government
Tort Claims Act (“LGTCA”), Md. Code (2013, 2017
Supp.), §§ 5-301 et seq. of the Courts and
Judicial Proceedings Article (“C.J.”). ECF 17,
alleges that defendants terminated her in retaliation for her
“protected complaints about unlawful race
discrimination” (ECF 17, ¶ 86), and because she
opposed the County's discriminatory employment practices.
ECF 17, ¶¶ 87, 107-110, 115-118. The claims are
made under five statutes: Title VII, MFEPA, § 1981,
Title VI, and § 504. Defendants seek dismissal in part
and/or summary judgment as to each of plaintiff's
retaliation claims. ECF 21.
particular, defendants contend that, as to the MFEPA claim,
plaintiff has failed to comply with the notice requirement
under the LGTCA, C.J. § 5-304. Further, defendants argue
that plaintiff “has failed to state a cognizable claim
under Title VI” and under § 1981. ECF 21-1 at 2.
In addition, defendants contend that plaintiff has failed to
exhaust a portion of her Title VII claim. And, defendants
posit that plaintiff “has not alleged and/or cannot
prove all of the elements of retaliation under any
statute.” ECF 21-1 at 2. And, defendants contend that
plaintiff's claim for punitive damages is subject to
to dismiss for failure to exhaust administrative remedies are
governed by [Federal Rule of Civil Procedure] 12(b)(1) for
lack of subject matter jurisdiction.” Clarke v.
DynCorp Int'l LLC, 962 F.Supp.2d 781, 786 (D. Md.
2013) (quotation marks and citation omitted). Under Rule
12(b)(1), the plaintiff bears the burden of proving, by a
preponderance of evidence, the existence of subject matter
jurisdiction. See Demetres v. East West Const.,
Inc., 776 F.3d 271, 272 (4th Cir. 2015); see also
The Piney Run Pres. Ass'n v. The Cty. Comm'rs Of
Carroll Cty., MD, 523 F.3d 453, 459 (4th Cir. 2008). A
Rule 12(b)(1) motion should be granted “only if the
material jurisdictional facts are not in dispute and the
moving party is entitled to prevail as a matter of
law.” Clarke, 962 F.Supp.2d at 786 (quotation
marks and citation omitted).
challenge to subject matter jurisdiction under Rule 12(b)(1)
may proceed “in one of two ways”: either a facial
challenge, asserting that the allegations pleaded in the
complaint are insufficient to establish subject matter
jurisdiction, or a factual challenge, asserting
“‘that the jurisdictional allegations of the
complaint [are] not true.'” Kerns v. United
States, 585 F.3d 187, 192 (4th Cir. 2009) (citation
omitted) (alteration in original); see also Durden v.
United States, 736 F.3d 296, 300 (4th Cir. 2013). A
factual challenge can assert that facts outside the four
corners of the complaint preclude the exercise of subject
matter jurisdiction. Id.
facial challenge, “the facts alleged in the complaint
are taken as true, and the motion must be denied if the
complaint alleges sufficient facts to invoke subject matter
jurisdiction.” Kerns, 585 F.3d at 192. In a
factual challenge, on the other hand, “the district
court is entitled to decide disputed issues of fact with
respect to subject matter jurisdiction.” Id.
In that circumstance, the court “may regard the
pleadings as mere evidence on the issue and may consider
evidence outside the pleadings without converting the
proceeding to one for summary judgment.” Velasco v.
Gov't of Indonesia, 370 F.3d 392, 398 (4th Cir.
2004); see also United States ex rel. Vuyyuru v.
Jadhav, 555 F.3d 337, 347-48 (4th Cir. 2009); Evans
v. B.F. Perkins Co., a Div. of Standex Int'l Corp.,
166 F.3d 642, 647 (4th Cir. 1999).
the court may take judicial notice of the existence and
contents of EEOC proceedings “if necessary to decide
issues like exhaustion of administrative remedies[.]”
Clarke, 962 F.Supp.2d at 787. But, “it may not
take judicial notice of the truth of matters outside
the challenged pleading.” Id. (emphasis in
Rule 12(b)(6), a defendant may test the legal sufficiency of
a complaint by way of a motion to dismiss. 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.”
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).
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, Miss., ___ U.S. ___, 135 S.Ct.
346, 346 (2014) (per curiam).
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
certain 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), cert.
denied, 138 S.Ct. 558 (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
noted, defendants have moved to dismiss or, in the
alternative, for summary judgment. 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.”
Fed.R.Civ.P. 12(d). 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 Fed.Appx. 632,
638-640 (4th Cir. 2016) (per curiam); McCray v. Maryland
Dep't of Transp., 741 F.3d 480, 483 (4th Cir. 2014).
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, Maryland, 672 Fed.Appx. 220, 222 (4th Cir.
2016) (citation omitted). 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
Fed.Appx. 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 Fed.Appx. 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 Fed.Appx. 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). The 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, ” 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.
filed an affidavit (ECF 24-6), but not under Fed.R.Civ.P.
56(d). Although she challenges the summary judgment motion,
she does not make clear that she is in need of discovery.
Nevertheless, granting summary judgment before discovery
“can be particularly inappropriate when a case involves
complex factual questions about intent and motive.”
Harrods, 302 F.3d 248 (citations omitted).
McCray, 741 F.3d 480, the Fourth Circuit considered
whether the district court erred when it granted summary
judgment to the defense in a Title VII case, before the
plaintiff had an opportunity to conduct requested discovery.
Id. at 483. 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. It 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. It reasoned, id. at 483: “Summary
judgment before discovery forces the non-moving party into a
fencing match without a sword or mask.” The Fourth
Circuit concluded that summary judgment was premature under
Rule 56(d). Id. at 481, 484.
view, given the posture of the case, the lack of any
opportunity for discovery, and the relevance of issues such
as motive, summary judgment would be premature. Moreover, in
the Reply (ECF 25), defendants clarify that “the
majority” of their arguments “focus solely on
these shortcomings of plaintiff' factual allegations and
legal claims” to show that the claims “are not
legally cognizable . . . .” Id. at 1.
Therefore, I shall construe the Motion solely under Rule
12(b), not Rule 56.
general, there are “two avenues” at
trial by which a plaintiff may prove a violation of
Title VII and other employment discrimination statutes.
Hill v. Lockheed Martin Logistics Mgmt.,
Inc., 354 F.3d 277, 284 (4th Cir. 2004) (en banc)
(recognized in Foster v. Univ. of Maryland-E. Shore,
787 F.3d 243, 249 (4th Cir. 2015), as abrogated on other
grounds by Univ. of Texas Sw. Med. Ctr. v. Nassar, 570
U.S. 338 (2013)); see Love-Lane v. Martin, 355 F.3d
766, 786 (4th Cir. 2004) (stating that “the
McDonnell Douglas framework, developed for Title
VII, has been used to evaluate race discrimination claims
under the three statutes, ” i.e., Title VII,
§ 1981, and § 1983); see also,
e.g., Lightner v. City of Wilmington, N.C.
, 545 F.3d 260, 263 n.* (4th Cir. 2008) (“[T]he
McDonnell Douglas framework applies to
discrimination claims under...§ 1981.”).
plaintiff's first avenue is to offer “‘direct
or indirect'” evidence of discrimination under
“‘ordinary principles of proof.'”
Burns v. AAF-McQuay, Inc., 96 F.3d 728, 731 (4th
Cir. 1996) (citation omitted), cert. denied, 520
U.S. 1116 (1997). The plaintiff's second avenue is to
follow the burden-shifting approach first articulated by the
Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). See, e.g., Young v. United
Parcel Serv., Inc., ___ U.S.___, 135 S.Ct. 1338, 1345
(2015) (construing the Pregnancy Discrimination Act);
Guessous, 828 F.3d at 216 (discussing the three
steps of the McDonnell Douglas framework).
McDonnell Douglas proof scheme is “a
procedural device, designed only to establish an order of
proof and production.” St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 521 (1993) (emphasis omitted).
Under the McDonnell Douglas approach, the
“ultimate burden of persuasion [at trial] never
‘shifts' from the plaintiff, ” who must prove
intentional unlawful discrimination. Williams v.
Cerberonics, Inc., 871 F.2d 452, 456 n.2 (4th Cir. 1989)
(citation omitted). Notably, “the McDonnell
Douglas test is ...