United States District Court, D. Maryland
L. HOLLANDER UNITED STATES DISTRICT JUDGE
Grady, who is self-represented, filed suit on April 25, 2017,
against her employer, Ryan McCarthy, Acting Secretary of the
United States Department of Army (the “Department,
” the “Agency, ” or the
“Army”). ECF 1 (“Complaint”). She
asserts claims for race, color, sex, and religious
discrimination (Count I), in violation of Title VII of the
Civil Rights Act of 1964, codified, as amended, at 42 U.S.C.
§§ 2000e et seq. (“Title
VII”); retaliation (Count II), in violation of Title
VII and the Rehabilitation Act of 1973, codified, as amended,
at 29 U.S.C. §§ 791 et seq.
(“Rehabilitation Act”); and hostile work
environment (Count III), in violation of Title VII and the
Rehabilitation Act. Id.
Department has moved to dismiss or, alternatively, for
summary judgment (ECF 15), supported by a memorandum of law
(ECF 15-1) (collectively, “Motion”) and numerous
exhibits. ECF 15-2 through ECF 15-10. Purusant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
the Clerk mailed a Rule 12/56 notice to Grady, advising her
of her right to respond, and that failure to do so could
result in dismissal of the case. ECF 18. Grady did not
hearing is necessary to resolve the Motion. See
Local Rule 105.6. Although Grady did not respond to the
Motion, I shall liberally construe her Complaint, because she
is self-represented. See Erickson v. Pardus, 551
U.S. 89, 94 (2007). For the reasons that follow, I shall
grant the Motion and enter judgment in favor of the
Factual and Procedural Background 
an African-American Christian woman, works in the
Department's “Directorate of Public Works
Engineering Branch” in Fort Meade, Maryland. ECF 1 at
12-13, ¶¶ 4, 8, 10. She currently serves as a GS-12
General Engineer, and is “the highest-ranking
African-American & female employee within Public Works
Engineering Branch.” Id. at 13, ¶ 8.
Since May of 2006, Chief Engineer James Randy Williams has
served as Grady's first-level supervisor. Id. at
13, ¶¶ 9, 10. Colonel Bert Rice served as
Grady's second-level supervisor from June 2013 through
June 2014. Id. at 13, ¶ 9; ECF 15-7 at 12.
Daniel Spicer has served as Grady's second-level
supervisor since Rice's departure. ECF 15-7 at 13. During
plaintiff's employment with the Department, she has filed
three Equal Employment Opportunity (“EEO”)
2008 EEO Complaint
after joining the Department, Grady was detailed to the Meade
Acquisition Team for approximately eighteen months to assist
in writing a contract. ECF 1 at 9; ECF 15-2 at 3-4. On
February 15, 2008, Grady filed an EEO complaint, alleging
race and sex discrimination on the basis that she “was
not afforded an equal opportunity to receive adequate
training opportunities.” ECF 15-2 (“2008 EEO
Complaint”), at 3.
around July 14, 2009, Grady and the Department entered into a
settlement agreement. Among other things, the Department
agreed to pay Grady's tuition for five college classes
(not to exceed $4, 200 in costs). ECF 15-5 at 3-9
(“Settlement Agreement”). In return, Grady agreed
to withdraw the 2008 EEO Complaint and waive her right to
pursue the accrued claims. Id. Accordingly, the EEO
Complaint was dismissed by the Equal Employment Opportunity
Committion (“EEOC”). Id. at 1. Grady
subsequently returned to the Engineering Branch as a General
Engineer. ECF 1 at 10; ECF 15-3.
2014 EEO Complaint
around July 15, 2014, Grady filed another EEO complaint,
alleging “an ongoing continuous pattern of harassment,
workplace violence, disparate treatment/impact, and
retaliation/reprisal for engagement in protected
activity.” ECF 15-3 (“2014 EEO Complaint”),
at 4. The 2014 EEO Complaint included various incidents of
alleged discrimination by Grady's supervisors, which
occurred between 2009 and 2014. Id. at 7-35. The
alleged conduct generally falls into the following
categories: (1) harassment by coworkers; (2) supervisors'
failure to respond to alleged harassment; and (3) disparate
Harassment by Coworkers
alleged several incidents of harassment by her coworkers.
These included the following: (1) In February 2009, Williams
forwarded a “[r]acially based video showing indentured
servants performing labor and on ship in water.” ECF
15-3 at 7. (2) On January 30, 2014, Grady's coworker left
a “Graphic photo of [a] blood sucking bug” on
Grady's office chair. Id. at 19. (3) On March
11, 2014, during a meeting with other engineers, Williams
“utilized [a] loud tone directed toward [Grady] asking
how they [sic] Hell [sic] she was going to execute [the]
project.” Id. at 29. Grady was
“humiliated and degraded” by such conduct.
Id. (4) On May 28, 2014, Grady received “Hate
Mail on [a] Government computer” from Callie Donaldson,
stating that Grady was a “race card playing
bitch” and that “We ALL HATE and DISRESPECT you
every day.” ECF 15-3 at 34.
Grady asserted that since 2011, her coworker, Anthony
Karwoski, continuously harassed her, physically and verbally.
See Id. at 9, 14, 21. Specifically, Grady alleged
that Karwoski “intentionally made reprehensible
statements which are false regarding [Grady's] work
assignments/projects, ” and he “modified
[Grady's] project without her knowledge or consent. . . .
[and] [a]ssaulted [Grady] physically [and] verbally without
any repercussions” by Grady's supervisors.
Id. at 21. Additionally, Grady claimed that in
January 2014 she “was trapped in a corner by [Karwoski]
as he verbally and physically assaulted [her] (finger within
inches of [Grady's] face) . . . for approx. 5 minutes . .
. .” Id. at 28.
Supervisors' Failure to Respond to Alleged
alleged that her supervisors failed to respond to Grady's
complaints of alleged harassment during the relevant time.
Specifically, Grady asserted: (1) In January 2011,
Grady's supervisors “failed to take prompt
action” in response to a physical and verbal threat by
Karwoski. Id. at 9. (2) In June 2012, after Karwoski
“continued to harass” Grady, her supervisors
showed favorable treatment toward Karwoski and condoned his
actions. Id. at 14. (3) On May 20, 2013, Grady's
supervisors failed to respond to Grady's complaints
regarding unauthorized access to her work files and other
computer difficulties. Id. at 25. (4) In August
2013, Grady's supervisors failed to respond to
Grady's reports of fraud, waste, and abuse. Id.
at 26. (5) Grady's supervisors failed to respond to the
alleged incident of January 2014, involving Karwoski.
Id. at 28.
alleged multiple instances of disparate treatment, as
follows. (1) From 2009 until 2010, Grady “was treated
less favorably regarding assignment of offices. . . . [and]
was not assigned an office until she complained regarding the
less favorable treatment.” ECF 15-3 at 8, 16. (2) From
2010 until 2014, Williams “show[ed] favor toward
similar[ly] situated employees with regarding to [sic]
filling managerial roles during his absence.”
Id. at 8. (3) On March 2, 2010, Grady's
supervisors asked Grady to purchase a training handbook.
Id. at 24. (4) In August or September 2010, Grady
“was requested on several occasions to sign off on
construction contracts [and] BG&E [contracts] for
projects not assigned to her.” Id. at 10. (5)
In June 2011, Williams showed preferential treatment to white
male technicians and personnel regarding project assignments
and proposals. Id. at 11-12, 22. (6) On June 25,
2012, Grady's supervisors “[i]ntentionally hindered
[Grady] from moving forward with execution” of her
projects. Id. at 15. (7) In August 2013, Grady was
penalized on her performance review in retaliation for her
reports of fraud, waste, and abuse. Id. at 26. (8)
On November 6, 2013, Williams transferred a project from
Grady to Karwoski without an explanation. Id. at
31-32. (9) In May or June 2014, Grady's supervisors
“either transferr[ed] [Grady's] assignments or
consulted with male white engineering technicians regarding
recommendations and request[s] submitted by [Grady].”
Id. at 22, 30. (10) In December 2013, Grady's
supervisors “lowered” Grady's performance
appraisal.” Id. at 27. Grady characterized the
evaluation as “biased, ” and asserted that it was
in “retaliation for EEO inquiry.” Id.
also alleged that she received lower pay than her fellow male
engineers for equal work. Id. at 13. Further, she
asserted that in May 2012 she declined an offer of a lateral
position, because there was no increase in pay. ECF 15-3 at
13. Grady later received “an anonymous tip [in] June
2014 [that the] lateral position offered in 2012 paid
sufficiently more money than what was offered.”
Grady claims that in June of 2014, she submitted ideas
through Fort Meade's Employment Innovation Program, which
were subsequently implemented. Id. at 18. However,
Grady never received an award for her proposals, which was
allegedly promised by the Employment Innovation Program.
Id. Grady also asserted that during May or June of
2014 her supervisors “consulted with male white
engineering technicians regarding subsequent recommendations
and request[s] submitted by [Grady].” Id. at
2016 EEOC Hearing
EEOC held a two-day hearing on March 23-24, 2016, before
Administrative Law Judge Enechi A. Modu (“ALJ
Modu”). See ECF 15-6 (Transcripts of March 23,
2016 and March 24, 2016). Plaintiff appeared without counsel.
Id. at 2.
the hearing, ALJ Modu addressed Grady's claims
“that  since August 2012 the Agency has paid
Complainant at a rate less than male engineers, and that 
her supervisor refused to process her Workers'
Compensation claim on or about July 2014. July slash August
of 2014.” Id. at 9. ALJ Modu dismissed
Grady's disparate pay claim after noting that Grady
proffered no evidence to rebut the Department's
“legitimate and nondiscriminatory reason for the
difference in pay”-namely, that “some of these
engineers had not been employed by the Agency for the same
length of time.” Id. at 12-13. ALJ Modu also
dismissed Grady's workers' compensation claim as a
“collateral attack, ” concluding that she would
“examine” the supervisors' conduct in the
context of Grady's harassment claim. Id. at 11;
see Id. at 10-12. As to the remaining claims, ALJ
Modu heard testimony from Grady, her supervisors, and other
individuals who worked at the Department. Id. at
hearing on September 30, 2016, ALJ Modu rendered a
comprehensive oral ruling. ECF 15-7 at 2-78. She found,
inter alia, that Grady “ha[d] not proven by a
preponderance of the evidence that the Agency unlawfully
discriminated against her on the bases of her race, sex,
religion, prior EEO activity, or subjected her to harassment
in the terms and conditions of her employment, from March,
2013 through June, 2015.” ECF 15-7 at 72-73.
December 20, 2016, ALJ Modu issued an Order Entering Judgment
in favor of the Agency. ECF 15-7 at 1. A transcript of
the oral ruling was attached. Id. at 2-4. The Agency
issued its Final Action on January 19, 2017, adopting ALJ
Modu's ruling and advising Grady of her right to file a
civil action within ninety days of the date of receipt of the
Agency's Final Action. ECF 15-8 at 1-5 (“Final
2016 EEO Complaint
about April 22, 2016, Grady filed her third EEO complaint,
alleging sex discrimination and retaliation on the basis that
the Department denied her telework request. ECF 15-4
(“2016 EEO Complaint”). According to her 2016 EEO
Complaint, Grady initially submitted an employee telework
request to Williams on October 9, 2015. Id. at 4.
Williams denied Grady's request on or around October 22,
2015, and, after further review, Deputy Commander John
Moeller denied Grady's request on or around November 13,
2015. Id. Spicer, Grady's supervisor, advised
Grady that “the telework request would be reconsidered
for 1 (one) day per pay period if resubmitted.”
Id. Grady was also advised that she had used the
incorrect form for her request and that the updated form
would be provided to her. Id. at 5.
Grady alleged that on or around October 22, 2015, Williams
informed Grady that her request was denied because:
“(a.) [Grady] has a sick child, (b.) DPW Chief Engineer
[was] not sure if breathing treatments would be provided by
[Grady] during telework hours, [and] (c.) [Grady] is needed
onsite for meetings, inspections and, communication with
contractors.” ECF 15-4 at 5. Grady claimed that,
despite Williams's explanation, the Agency has approved
telework requests for similarly situated employees.
around November 20, 2015, Grady moved to amend her 2014 EEO
Complaint to include the denial of her telework request,
which ALJ Modu denied on March 23, 2016. Id. at 6.
On or around April 15, 2016, Grady received the updated
telework request form from the Fort Meade EEO Specialist.
Id. at 5. Grady resubmitted her telework request to
the Agency for review on April 18, 2016. Id. She
subsequently filed an EEOC complaint with the Fort Meade EEO
on April 22, 2016. Id. at 1-6.
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);
Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th
Cir. 1999). 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 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
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 United States ex rel. Vuyyuru v. Jadhav,
555 F.3d 337, 347-48 (4th Cir. 2009) (“Unless
‘the jurisdictional facts are intertwined with the
facts central to the merits of the dispute,' the district
court may . . . resolve the jurisdictional facts in dispute
by considering evidence . . . such as affidavits.”)
(citation omitted); Evans, 166 F.3d at 647.
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 expressly incorporated by reference 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 Six v. Generations Federal Credit Union, ___
F.3d ____, 2018 WL 2435430, at *2 (4th Cir. May 31, 2018);
Goldfarb v. Mayor & City Council of Balt., 791
F.3d 500, 508 (4th Cir. 2015); Goines, 822 F.3d at
166; 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).
“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).
See also Fed. R. Civ. P. 10(c) (“A copy of a
written instrument that is an exhibit to a pleading is a part
of the pleading for all purposes.”).
“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, even if
it was not attached to or expressly incorporated in a
complaint. However, the document must be “integral to
the complaint” and there can be “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).
noted, defendant has 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 Volunteer Fire Dep't, Inc.
v. Montgomery Cty., 788 F.Supp.2d 431, 436-37 (D. Md.
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); see
Adams Housing, LLC v. The City of Salisbury, Maryland,
672 Fed. App'x 220, 222 (4th Cir. 2016) (per curiam).
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; 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) (citations
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.) (“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 435,
448-49 (4th Cir. 2011) (citation omitted); see Putney v.
Likin, 656 Fed.Appx. 632, 638-40 (4th Cir. 2016) (per
curiam); McCray v. Maryland Dep't of Transp.,
741 F.3d 480, 483 (4th Cir. 2014). 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) (quoting Evans v. Techs. 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, it cannot present facts
essential to justify its opposition, ” without needed
discovery. Fed.R.Civ.P. 56(d); see Harrods, 302 F.3d
at 244-45 (discussing 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 Gordon v. CIGNA Corp., ____ F.3d ___, 2018 WL
2209305, at *10 (4th Cir. May 15, 2018); Amirmokri v.
Abraham, 437 F.Supp.2d 414, 420 (D. Md. 2006),
aff'd, 266 Fed.Appx. 274 (4th Cir. 2008) (per
curiam), cert. denied, 555 U.S. 885 (2008).
Moreover, if the opposing party had a reasonable opportunity
to conduct discovery, a Rule 56(d) motion may be denied.
Hodgin v. UTC Fire & Security Americas Corp.,
Inc., 885 F.3d 243, 250 (4th Cir. 2018).
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 her 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. And, a court “should hesitate
before denying a Rule 56(d) motion when the nonmovant seeks
necessary information possessed only by the movant.”
Risano v. Strach, 743 F.3d 927, 931 (4th Cir. 2014).
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). According to the
Fourth Circuit, 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 [sic] and
that more discovery is necessary, ” and the
“nonmoving party's objections before the district
court ‘served as the functional equivalent of an
affidavit.'” 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)).
“This is especially true where, as here, the non-moving
party is proceeding pro se.” Putney, 656
Fed.Appx. at 638.
has not responded to the Motion. Given her lack of a
response; the investigation and evidentiary hearing held by
the EEOC in 2016 concerning Grady's various claims; and
the fact that the claims dating to 2008 and 2009 are untimely
and were otherwise the subject of a settlement agreement, I
am satisfied that further discovery would not generate a
dispute of material fact. I will address portions of the
Agency's Motion as one to dismiss, and other portions
pursuant to summary judgment, as this will facilitate
resolution of the case.
judgment is governed by Fed.R.Civ.P. 56(a), which provides,
in part: “The court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” The Supreme Court has clarified that
this does not mean that any factual dispute will defeat the
motion. “By its very terms, this standard provides that
the mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be
no genuine issue of material fact.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)
(emphasis in original).
is “material” if it “might affect the
outcome of the suit under the governing law.”
Id. at 248. There is a genuine issue as to material
fact “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
Id.; see Sharif v. United Airlines, Inc.,
841 F.3d 199, 2014 (4th Cir. 2016); Raynor v. Pugh,
817 F.3d 123, 130 (4th Cir. 2016); Libertarian Party of
Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013).
“[a] party opposing a properly supported motion for
summary judgment ‘may not rest upon the mere
allegations or denials of [his] pleadings,' but rather
must ‘set forth specific facts showing that there is a
genuine issue for trial.'” Bouchat v. Baltimore
Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir.
2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)),
cert. denied, 541 U.S. 1042 (2004). The court should
“view the evidence in the light most favorable to . . .
the nonmovant, and draw all inferences in her favor without
weighing the evidence or assessing the witness
credibility.” Dennis v. Columbia Colleton Med.
Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002);
see Roland v. U.S. Citizenship & Immigration
Servs., 850 F.3d 625, 628 (4th Cir. 2017); Lee v.
Town of Seaboard, 863 F.3d 323, 327 (4th Cir. 2017);
FDIC v. Cashion, 720 F.3d 169, 173 (4th Cir. 2013).
the district court's “function” is not
“to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.” Anderson, 477 U.S. at 249; accord
Guessous v. Fairview Prop. Inv., LLC, 828 F.3d 208, 216
(4th Cir. 2016). Thus, the trial court may not make
credibility determinations on summary judgment. Jacobs v.
N.C. Admin. Office of the Courts, 780 F.3d 562, 569 (4th
Cir. 2015); Mercantile Peninsula Bank v. French, 499
F.3d 345, 352 (4th Cir. 2007); Black & Decker Corp.
v. United States, 436 F.3d 431, 442 (4th Cir. 2006);
Dennis, 290 F.3d at 644-45. An “unadorned
opinion” of a plaintiff who alleges discrimination may
be insufficient to withstand summary judgment. See
Nnadozie v. Genesis Healthcare Corp., ____ Fed.
App'x ___, 2018 WL 1830935 (4th Cir. April 17, 2018), at
*7 (distinguishing Mackey v. Shalala, 360 F.3d 463,
469-70 (4th Cir. 2004)). But, “extensive corroborating
evidence” is not necessary to withstand summary
judgment, because that “‘relates only to the
credibility and weight of the evidence, which are issues for
the jury.'” Nnadozie, ...