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Grady v. McCarthy

United States District Court, D. Maryland

June 22, 2018




         Altramesia 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.

         The 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 respond.

         No 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 Department.

         I. Factual and Procedural Background [1]

         Grady, 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”) complaints.

         A. 2008 EEO Complaint

         Shortly 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.

         On or 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.

         B. 2014 EEO Complaint

         On or 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 treatment.

         i. Harassment by Coworkers

         Grady 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.[2]

         Further, 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.

         ii. Supervisors' Failure to Respond to Alleged Harassment

         Grady 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.

         iii. Disparate Treatment

         Grady 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.

         Grady 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.” Id.

         Moreover, 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 22.

         C. 2016 EEOC Hearing

         The 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).[3] Plaintiff appeared without counsel. Id. at 2.

         During the hearing, ALJ Modu addressed Grady's claims “that [1] since August 2012 the Agency has paid Complainant at a rate less than male engineers, and that [2] 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 19-392.

         At a 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.

         On December 20, 2016, ALJ Modu issued an Order Entering Judgment in favor of the Agency. ECF 15-7 at 1.[4] 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 Action Letter”).

         D. 2016 EEO Complaint

         On or 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.

         Further, 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. Id.

         On or 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.

         II. Legal Standards


         “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); 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).

         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 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 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.

         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).


         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 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).

         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). 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.”).

         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, 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).


         As 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. 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); 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 omitted).

         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.) (“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.

         Generally, 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).

         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, 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).

         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 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).

         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). 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.

         Grady 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.


         Summary 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).

         A fact 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).

         Notably, “[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).

         Moreover, 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, ...

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