United States District Court, D. Maryland
MICHAEL J. GORHAM, Plaintiff,
STATE OF MARYLAND, DEPARTMENT OF GENERAL SERVICES Defendant.
L. Hollander United States District Judge
employment discrimination case, plaintiff Michael J. Gorham
filed suit against defendant State of Maryland, Department of
General Services (“MDGS” or
“Department”). ECF 1. He alleges disparate
treatment on the basis of race as well as retaliation, in
violation of Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. § 2000e et
before this court is defendant's pre-discovery motion to
dismiss under Fed.R.Civ.P. 12(b)(1) and 12(b)(6) or, in the
alternative, for summary judgment. ECF 4. The motion is
supported by a memorandum of law (ECF 4-1) (collectively, the
“Motion”) and several exhibits. Plaintiff opposes
the Motion (ECF 7), supported by a memorandum (ECF 7-1)
(collectively, “Opposition”), and has also
submitted exhibits. Defendant did not file a reply.
hearing is necessary to resolve the Motion. See
Local Rule 105.6 (D. Md. 2016). For the reasons stated below,
the Motion will be granted in part and denied in part.
Factual Background 
2007, MDGS hired plaintiff, an African-American, as a
Maintenance Supervisor within the Facilities Operation and
Maintenance, Multi-Service Division (“FOM”). ECF
1 ¶¶ 14-15; ECF 4-1 at 2. As a Maintenance
Supervisor, plaintiff's responsibilities included
reporting to and assisting the Regional Manager in matters of
procurement, building maintenance operation, and supervising
subordinate employees. ECF 1, ¶ 16. Throughout the
course of plaintiff's employment, as positions became
available, he “continuously” applied for
promotions to become a Regional Manager. Id. ¶
Bauman, who is Caucasian, is the Superintendent of the
Department. She “has been the selecting official for
the Regional Manager positions from 2008 to present.”
Id. ¶ 19. According to plaintiff, instead of
selecting him, MDGS hired several less qualified Caucasian
employees to fill Regional Manager positions. Id.
¶¶ 20-21. They included Delbert Stallings, who was
promoted from a Maintenance Mechanic in or around 2008, and
Nicole Leary, who was promoted in 2016 from the position of
Administrative Assistant. Id. ¶ 21.
Additionally, the Department hired Mike Ireland in 2011 and
Michael Kane in 2013 to serve in the position of Regional
beginning of 2016, Adrian Randall, an African-American, held
the Regional Manager position for Region 3 (South Baltimore).
Bauman Aff., ECF 4-3 at 1-5, ¶ 5. Randall informed MDGS
that he intended to retire, on or about June 30, 2016.
Id. at 3, ¶ 12. Accordingly, to fill the
impending vacancy, Bauman issued an email announcement
notifying “a broad range of employees in FOM who
expressed interest in [the] position, ” including
plaintiff, of the opportunity to be considered for the
position. ECF 4-3 at 6 (email); see also ECF 4-3 at
2, ¶ 6; Pl.'s Opp., ECF 7-1 at 7. The email provided
the job specifications, requested that potential applicants
“make sure” they met the minimal job
qualifications, and advised that candidates would be required
to bring an application or resume to a subsequent interview.
ECF 4-3 at 6. According to plaintiff, he inquired why the
position was not publicly advertised, but Bauman did not
provide any explanation. ECF 1, ¶¶ 23-24.
employees, including plaintiff and two other
African-Americans, responded to Bauman's email and were
scheduled for interviews. Bauman Aff., ECF 4-3 at 2, ¶
7. According to the Department, because Bauman's brother,
Brian Kramer, applied for the position, “[a] group of
panelists were selected to conduct the interview process in
order to distance  Bauman from the selection
process.” ECF 4-1 at 2 n.1.
four-person MDGS panel included one African-American
employee. Bauman Aff., ECF 4-3, at 2, ¶ 8. During the
interviews, the panel asked each candidate fourteen identical
questions, and took notes on the responses, and included
their positive and negative impressions. Id.
¶¶ 9-10. The panelists scored the candidates'
responses and tallied their scores from each response to
reach a total. Id. at 3, ¶ 11. A
candidate's final rating equaled the sum of each of the
panelist's individual scores. Id.
interview notes for Gorham are docketed at ECF 4-3 at 12-19.
The rating sheets are docketed at ECF 4-3 at 20-36. The
totals for each candidate for found at ECF 4-3 at 37-38.
2016, the panel selected Kramer to succeed Randall as
Regional Manager for South Baltimore, because he was the
candidate with the highest combined total score. ECF 4-3 at
3, ¶ 11; ECF 4-3 at 37-38; ECF 1, ¶ 25. According
to the Department, plaintiff scored the lowest of all nine
applicants. ECF 4-3 at 37-38. However, plaintiff contends
that he was more experienced than Kramer, because he had
three more years at MDGS and had worked in a supervisory
capacity, while Kramer had not. ECF 1, ¶¶ 26-27.
plaintiff contends that Caucasian Maintenance Supervisors
have a 7:00 a.m. to 3:00 p.m. work schedule, while he, the
sole African-American Maintenance Supervisor, has a less
favorable work schedule of 8:30 a.m. to 5:00 p.m.
Id. ¶ 29. Although plaintiff has requested that
Bauman “change his schedule to match those of his
colleagues, ” Bauman has repeatedly denied his
requests. Id. ¶ 30. Moreover, after plaintiff
changed his schedule to match those of the Caucasian
Maintenance Supervisors, Bauman reinstituted his original
schedule “without adequate justification.”
Id. ¶¶ 31-32.
about July 22, 2016, “because of his
non-selection” to replace Randall as Regional Manager
of South Baltimore, plaintiff filed a complaint of employment
discrimination against MDGS with the Equal Employment
Opportunity Commission (“EEOC”). ECF 1-1 at 1.
The EEOC informed plaintiff that it “had complied with
the law and notified the employer that [he] filed a
charge” and instructed plaintiff to sign and return the
attached “Charge of Discrimination”
(“Charge”) form. Id.
signed the Charge on July 30, 2016, alleging discrimination
based only on race. Id. at 4. Plaintiff did not
allege that he was subject to any other type of
discrimination, such as retaliation. See Id. (the
specific box to be checked for retaliation is left blank). In
his Charge, under the section “DATE(s) DISCRIMINATION
TOOK PLACE, ” plaintiff alleged that he was subject to
discrimination only on one Dated: June 28, 2016. Id.
In the section titled “The Particulars Are, ”
plaintiff said, in part, id.: “In late June
 I was afforded an interview for [the position of
Maintenance Supervisor] which I have continually expressed an
interest in. However, despite my years of experience and
record of performance, I was rejected in favor of a lessor
[sic] qualified White Male . . . .” Further, he said,
id.: “I believe I have been denied a promotion
because of my race, Black . . . .”
MDGS employee, plaintiff is subject to biannual performance
evaluations from his Regional Manager. Bauman Aff., ECF 4-3,
¶ 13. As the “appointing authority” of
Regional Managers, Bauman reviews and countersigns the
performance evaluations. Id. ¶ 14. According to
plaintiff, prior to Randall's retirement on or about June
30, 2016, Randall completed and signed plaintiff's
performance evaluation. ECF 1, ¶ 34. Further, plaintiff
contends that, because he filed an EEOC Charge and Bauman
believed that Randall had given him an improper score, Bauman
reevaluated plaintiff in August 2016 and “inexplicably
lowered [his score] to Satisfactory, with a score of
2.41.” Id. ¶¶ 33, 35-36, 59.
According to plaintiff, his lowered evaluation score was
“used against” him by MDGS as a basis not to
promote him. ECF 4-3 at 45.
Department, on the other hand, contends that Bauman
countersigned the evaluation on August 23, 2016, when the
Department had no knowledge of plaintiff's EEOC Charge.
It claims that plaintiff's Charge “was not received
by the State of Maryland until August 23, 2016.” ECF
4-1 at 3. MDGS relies on the affidavit of Glynis Watford as
to the date that the State received notice. See
Watford Aff., ECF 4-4.
2007, Watford has been the Statewide EEO Coordinator of the
Department of Budget and Management. Id. ¶ 1.
As part of her duties, Watford “often receive[s]
Notices of Charges of Discrimination when complaints have
been filed with the [EEOC] by Maryland State employees.
Id. ¶ 4. According to Watford, she received an
email notice from the EEOC as to plaintiff's Charge
“on or about August 23, 2016.” Id.
¶ 5. See also ECF 4-4 at 3 (email notice). The
Charge itself was received on August 23, 2016. ECF 4-4 at 2,
¶ 6. Thereafter, she forwarded the EEOC Charge to Robert
A. McFarland, Assistant Attorney General, Department of
General Services. Id.
MDGS contends that Bauman did not reduce Randall's
initial evaluation score. ECF 4-1 at 12. Instead, because
Randall had improperly entered plaintiff's scores as
“mid-term evaluations, ” Bauman merely corrected
the evaluation “by entering the identical
scoring information on the end-cycle column and submitted the
corrected version to the plaintiff for review and
signature.” Id. (citing Bauman Aff., ECF 4-3,
¶¶ 12-16) (emphasis in original). According to
MDGS, the performance evaluation from Bauman “was
identical to that actually done by  Randall before his
retirement . . . .” ECF 4-1 at 12.
alleges that, in violation of Title VII, MDGS discriminated
against him on the basis of his race and retaliated against
him for filing an EEOC Charge. ECF 1. MDGS seeks dismissal
and/or summary judgment as to each of plaintiff's claims.
particular, the Department contends that this court lacks
subject matter jurisdiction to consider the failure to change
work schedule claim under Count One and Count Two, and
plaintiff's retaliation claim in Count Two, because
plaintiff failed to exhaust his administrative remedies, as
required by Title VII. ECF 4-1 at 6-11. Further, MDGS posits
that, with respect to plaintiff's retaliation claim,
because the dates of the alleged retaliatory actions are
prior to MDGS having received notice of plaintiff's EEOC
Charge, plaintiff has failed to state a claim upon which
relief can be granted. Id. at 11-13. Finally, MDGS
argues that, with respect to plaintiff's claim of racial
discrimination, there is no dispute of any material fact,
thereby entitling it to summary judgment as a matter of law.
Id. at 13-17.
to dismiss for failure to exhaust administrative remedies are
governed by [Federal Rule of Civil Procedure] 12(b)(1) for
lack of subject matter jurisdiction.” Clarke v.
DynCorp Int'l LLC, 962 F.Supp.2d 781, 786 (D. Md.
2013) (quotation marks and citation omitted). Under Rule
12(b)(1), the plaintiff bears the burden of proving, by a
preponderance of evidence, the existence of subject matter
jurisdiction. See Demetres v. East West Const.,
Inc., 776 F.3d 271, 272 (4th Cir. 2015); see also
The Piney Run Pres. Ass'n v. The Cty. Comm'rs Of
Carroll Cty., MD, 523 F.3d 453, 459 (4th Cir. 2008). A
Rule 12(b)(1) motion should be granted “only if the
material jurisdictional facts are not in dispute and the
moving party is entitled to prevail as a matter of
law.” Clarke, 962 F.Supp.2d at 786 (quotation
marks and citation omitted).
challenge to subject matter jurisdiction under Rule 12(b)(1)
may proceed “in one of two ways”: either a facial
challenge, asserting that the allegations pleaded in the
complaint are insufficient to establish subject matter
jurisdiction, or a factual challenge, asserting
“‘that the jurisdictional allegations of the
complaint [are] not true.'” Kerns v. United
States, 585 F.3d 187, 192 (4th Cir. 2009) (citation
omitted) (alteration in original); see also Durden v.
United States, 736 F.3d 296, 300 (4th Cir. 2013). A
factual challenge can assert that facts outside the four
corners of the complaint preclude the exercise of subject
matter jurisdiction. Id.
facial challenge, “the facts alleged in the complaint
are taken as true, and the motion must be denied if the
complaint alleges sufficient facts to invoke subject matter
jurisdiction.” Kerns, 585 F.3d at 192. On the
other hand, in a factual challenge, “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
the court may take judicial notice of the existence and
contents of EEOC proceedings “if necessary to decide
issues like exhaustion of administrative remedies[.]”
Clarke, 962 F.Supp.2d at 787. But, “it may not
take judicial notice of the truth of matters outside
the challenged pleading.” Id. (emphasis in
Rule 12(b)(6), a defendant may test the legal sufficiency of
a complaint by way of a motion to dismiss. In re
Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines
v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th
Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393,
408 (4th Cir. 2010), aff'd sub nom.,
McBurney v. Young, 569 U.S. 221 (2013); Edwards
v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999).
A Rule 12(b)(6) motion constitutes an assertion by a
defendant that, even if the facts alleged by a plaintiff are
true, the complaint fails as a matter of law “to state
a claim upon which relief can be granted.”
a complaint states a claim for relief is assessed by
reference to the pleading requirements of Fed.R.Civ.P.
8(a)(2). That rule provides that a complaint must contain a
“short and plain statement of the claim showing that
the pleader is entitled to relief.” The purpose of the
rule is to provide the defendants with “fair
notice” of the claims and the “grounds” for
entitlement to relief. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555-56 (2007).
survive a motion under Fed.R.Civ.P. 12(b)(6), a complaint
must contain facts sufficient to “state a claim to
relief that is plausible on its face.”
Twombly, 550 U.S. at 570; see Ashcroft
v. Iqbal, 556 U.S. 662, 684 (2009) (citation omitted)
(“Our decision in Twombly expounded the
pleading standard for ‘all civil actions' . . .
.”); see also Willner v. Dimon, 849 F.3d 93,
112 (4th Cir. 2017). But, a plaintiff need not include
“detailed factual allegations” in order to
satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555.
Moreover, federal pleading rules “do not countenance
dismissal of a complaint for imperfect statement of the legal
theory supporting the claim asserted.” Johnson v.
City of Shelby, Miss., __ U.S. __, 135 S.Ct.
346, 346 (2014) (per curiam).
the rule demands more than bald accusations or mere
speculation. Twombly, 550 U.S. at 555; see
Painter's Mill Grille, LLC v. Brown, 716 F.3d 342,
350 (4th Cir. 2013). If a complaint provides no more than
“labels and conclusions” or “a formulaic
recitation of the elements of a cause of action, ” it
is insufficient. Twombly, 550 U.S. at 555. Rather,
to satisfy the minimal requirements of Rule 8(a)(2), the
complaint must set forth “enough factual matter (taken
as true) to suggest” a cognizable cause of action,
“even if . . . [the] actual proof of those facts is
improbable and . . . recovery is very remote and
unlikely.” Twombly, 550 U.S. at 556 (internal
quotation marks omitted).
reviewing a Rule 12(b)(6) motion, a court “must accept
as true all of the factual allegations contained in the
complaint” and must “draw all reasonable
inferences [from those facts] in favor of the
plaintiff.” E.I. du Pont de Nemours & Co. v.
Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011)
(citations omitted); see Semenova v. MTA, 845 F.3d
564, 567 (4th Cir. 2017); Houck v. Substitute Tr. Servs.,
Inc., 791 F.3d 473, 484 (4th Cir. 2015); Kendall v.
Balcerzak, 650 F.3d 515, 522 (4th Cir. 2011), cert.
denied, 565 U.S. 943 (2011). But, a court is not
required to accept legal conclusions drawn from the facts.
See Papasan v. Allain, 478 U.S. 265, 286 (1986).
“A court decides whether [the pleading] standard is met
by separating the legal conclusions from the factual
allegations, assuming the truth of only the factual
allegations, and then determining whether those allegations
allow the court to reasonably infer” that the plaintiff
is entitled to the legal remedy sought. A Society Without
a Name v. Virginia, 655 F.3d 342, 346 (4th. Cir. 2011),
cert. denied, 566 U.S. 937 (2012).
generally do not “‘resolve contests surrounding
the facts, the merits of a claim, or the applicability of
defenses'” through a Rule 12(b)(6) motion.
Edwards, 178 F.3d at 243 (quoting Republican
Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)).
However, “in the relatively rare circumstances where
facts sufficient to rule on an affirmative defense are
alleged in the complaint, the defense may be reached by a
motion to dismiss filed under Rule 12(b)(6).”
Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th
Cir. 2007) (en banc); accord Pressley v. Tupperware Long
Term Disability Plan, 553 F.3d 334, 336 (4th Cir. 2009).
Because Rule 12(b)(6) “is intended [only] to test the
legal adequacy of the complaint, ” Richmond,
Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d
244, 250 (4th Cir. 1993), “[t]his principle only
applies . . . if all facts necessary to the affirmative
defense ‘clearly appear[ ] on the face of the
complaint.'” Goodman, 494 F.3d at 464 (quoting
Forst, 4 F.3d at 250) (emphasis added in
evaluating the sufficiency of a complaint in connection with
a Rule 12(b)(6) motion, a court ordinarily “may not
consider any documents that are outside of the complaint, or
not expressly incorporated therein . . . .”
Clatterbuck v. City of Charlottesville, 708 F.3d
549, 557 (4th Cir. 2013); see Bosiger, 510 F.3d 442,
450 (4th Cir. 2007). However, a court may properly consider
documents incorporated into the complaint or attached to the
motion to dismiss, “‘so long as they are integral
to the complaint and authentic.'” U.S. ex rel.
Oberg v. Pennsylvania Higher Educ. Assistance Agency,
745 F.3d 131, 136 (4th Cir. 2014) (quoting Philips v.
Pitt Cty. Memorial Hosp., 572 F.3d 176, 180 (4th Cir.
2009)); see Six v. Generations Federal Credit Union,
891 F.3d 508, 512 (4th Cir. 2018); Goldfarb v. Mayor
& City Council of Balto., 791 F.3d 500, 508 (4th
Cir. 2015); 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 Pint, 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 ...