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Morey v. Carroll County

United States District Court, D. Maryland

May 3, 2018

MADELINE M. MOREY, Plaintiff,
v.
CARROLL COUNTY, GOVERNMENT, et. al., Defendant.

          MEMORANDUM OPINION

          ELLEN L. HOLLANDER, UNITED STATES DISTRICT JUDGE

         In this 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 1.[1] 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.

         Defendants 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 (“Reply”).

         No 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.

         I. Factual Background[2]

         The 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..

         In 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.

         A month 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.[3] 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.

         Subsequently, 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. ¶¶ 31-34.

         On July 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. ¶ 41.

         Another 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.

         Plaintiff 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. ¶ 8.

         On 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.[4]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, ¶¶ 63-80.

         II. Legal Standards

         Plaintiff 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.

         In 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.[5] And, defendants contend that plaintiff's claim for punitive damages is subject to dismissal.

         A.

         “Motions 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).

         A 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.

         In a 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).

         Notably, 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 Clarke).

         B.

         Under 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.”

         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, Miss., ___ 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 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).

         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), 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 original).

         C.

         As 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).

         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 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).

         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 Fed.Appx. 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 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. 1988)).

         Plaintiff 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).

         In 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.

         In my 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.

         D.

         In 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.”).

         The 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).

         The 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 ...


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