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Terry v. Perdue

United States District Court, D. Maryland

September 19, 2018

RECARDO TERRY, Plaintiff
v.
SONNY PERDUE, SECRETARY, UNITED STATES DEPARTMENT OF AGRICULTURE Defendant

          MEMORANDUM

          JAMES K. BREDAR CHIEF JUDGE.

         Recardo Terry ("Plaintiff") brought this action against his employer, Sonny Perdue, the Secretary of the United States Department of Agriculture ("Defendant"), alleging race and disability discrimination, failure to accommodate his disability, and retaliation by his supervisors for engaging in protected activities.

         Now pending before the Court is Defendant's Motion to Dismiss, or in the Alternative, for Summary Judgment, filed pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 56. (ECF No. 11.) The issues have been briefed (ECF Nos. 11-1, 16, 21), and no hearing is required, see Local Rule 105.6 (D, Md. 2016). For the reasons explained below, the motion will be reviewed under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure and will be granted in part and denied in part.

         I. Overview[1]

         Plaintiff is an African American and disabled male who works as an Information Technology Specialist at the United States Department of Agriculture (the "Agency") in Riverdale, Maryland. (Compl., ECF No. 1. ¶ 6.) As an IT Specialist, Plaintiff is responsible for answering calls of Agency clients for IT-related assistance. (Id. at ¶ 9.) Plaintiffs first line supervisor is Vernon Muhammad, an African American male and an IT Specialist Supervisor, and his second level supervisor is Ann Corona, a Caucasian female and the Agriculture Technical Advisory Committee Department Manager. (Id. ¶ 6.) Plaintiff began his employment at the Agency in 2014 and remains employed there today. (Id.)

         Plaintiff suffers from chronic low back pain, anxiety, and Post-Traumatic Stress Disorder (PTSD). (Id.¶ 1.) Plaintiff s treatment for his conditions includes regular therapy sessions, most of which take place on Mondays. (Id.) In order to attend these sessions, Plaintiff submitted a variety of requests to the Agency regarding his employment, (See Id. ¶¶ 13-19.) Specifically, on September 2, 2016, Plaintiff submitted a request to the Agency's Reasonable Accommodation Representative, Dave Walton, in which he asked to have Mondays off and to have a set schedule. (Id. ¶ 13). In addition, Plaintiff requested that his home be designated as his permanent work station.[2] (Id.) The Agency largely approved Plaintiffs request; they agreed to give him Mondays off, a compressed set schedule Tuesday through Friday, and the ability to telework three days a week. (Id.) After one month, however, the Agency removed him from this schedule, (Id.) Therefore, on October 27, 2016, Plaintiff submitted a second, identical request. (Id. ¶ 14.) The Agency similarly approved this request; that is, they agreed to all of his proposed terms with the exception of his home being designated as his permanent duty station. (Id.) According to Plaintiff, Mr. Muhammad informed him that the Agency could not approve his request to telework full time because his supervisors did not have a letter from his doctor. (Id.) By contrast, Plaintiff alleges that three of his Caucasian co-workers were allowed to work from home permanently. (Id. ¶ 16.) Plaintiff filed an EEO complaint in January 2017, in which he alleged that he was being subjected to discrimination based on his race and disability by his supervisors. (Id. ¶ 15.)

         In late February 2017, Plaintiff met with his supervisors to discuss his accommodation requests. (Id. ¶¶ 16, 17.) At that time, Ms. Corona cancelled Plaintiffs existing compressed schedule-which allowed him Mondays off-and assigned him a set schedule five days a week. (Id.) Ms. Corona stated that she was taking away his Mondays off because of the complaint he filed. (Id. ¶ 17.) Further, Ms. Corona denied Plaintiffs alternative request for a maxi-flex schedule, which would have allowed him to work additional hours to make up for time missed on Mondays to attend his therapy sessions. (Id. ¶¶ 17, 18.) According to Plaintiff, almost all employees in his division work on a maxi-flex schedule. (Id. ¶ 18.) As a result of these scheduling changes, Plaintiff had to take leave on Mondays to attend his therapy or other medical appointments, (Id. ¶¶ 17, 18.)

         Along with these scheduling changes, Plaintiff and his supervisors also discussed his request to telework full time in their February, 2017 meetings. (Id. ¶¶ 16, 17.) At that time, his supervisors maintained that Plaintiff was required to come into the office at least one day per pay period. (Id.) A few days later, however, his "supervisors changed their position and granted Plaintiffs request to telework full time. (Id. ¶ 19.)

         In April 2017, the Agency conducted a six-month audit .of Plaintiff s time and attendance records. (Id. ¶ 21.) Plaintiff was the only IT Specialist subject to an audit. (Id.) According to Plaintiff, Mr. Muhammad informed him that the Agency chose to conduct the audit after an incident on March 1, 2017, when a supervisor was unable to locate Plaintiff even though he was scheduled to be at work. (Id. ¶ 21.) The audit revealed discrepancies in Plaintiffs time and attendance records, but the results were unreliable because the audit did not account for days that Plaintiff was working offsite. (Id.) Because of the results of the audit, Ms. Corona proposed to suspend Plaintiff for fourteen days.[3] (Id.)

         Plaintiff initiated the EEO process on January 11, 2017, at which time he contacted the Agency's EEO Counselor regarding the Agency's alleged discrimination and failure to provide reasonable accommodations due to his race and disability. (Mot. Dismiss Ex. 5, ECF No. 11-7.)[4]The Agency was unable to resolve the matter through the informal EEO process and, therefore, the Agency issued a Notice of Right to File to Plaintiff on February 22, 2017. (Id.) In turn, Plaintiff filed a formal complaint on March 3, 2017, and the Agency then conducted an investigation, (Id. at Ex. 9, ECF No. 11-11.) The Agency issued a Final Agency Decision on October 4, 2017, in which it concluded that the Agency had reasonably accommodated Plaintiffs disabilities and did not act discriminatorily. (Id.)

         Plaintiff filed the instant suit on January 3, 2018. (Compl.) Plaintiff asserts claims against Defendant for racial 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; failure to accommodate (Count III), in violation of the Rehabilitation Act of 1973, codified as amended, at 29 U.S.C. §§ 791 et seq. ("Rehabilitation Act"); and disability discrimination (Count IV), in violation of the Rehabilitation Act. (See id.) Defendant filed the pending Motion to Dismiss or, in the alternative, for Summary Judgment on June 7, 2018 (ECF No. 11); Plaintiff opposed Defendant's Motion (ECF No. 16), and Defendant replied (ECF No. 21). The matter is ripe for decision.

         II. Legal Standard

         Rule 12(b)(1) of the Federal Rules of Civil Procedure authorizes dismissal for lack of subject-matter jurisdiction. The Plaintiff bears the burden of proving subject-matter jurisdiction. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982); see also Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (noting challenge may be either facial, i.e., complaint fails to allege facts upon which subject-matter jurisdiction can be based, or factual, i.e., jurisdictional allegations of complaint are not true); Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991) ("When a Rule 12(b)(1) motion challenge is raised to the factual basis for subject matter jurisdiction, the burden of proving subject matter jurisdiction is on the plaintiff."). In the case of a factual challenge, it is permissible for a district court to "consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond, Fredericksburg, 945 F.2d at 768 (citing Adams, 697 F.2d at 1219).

         While Rule 12(b)(1) is directed toward threshold jurisdictional defects, Rule 12(b)(6) is implicated when the plaintiff fails to state a plausible claim for relief. In analyzing a Rule 12(b)(6) motion, the court must view all well-pleaded allegations in the light most favorable to the plaintiff. Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). "[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable[.]" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). Even so, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. at 555. "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (alteration in original) (quoting Twombly, 550 U.S. at 555, 557).

         Defendant moves in the alternative for summary judgment, in support of which they proffer several documents. "A motion styled in this manner implicates the court's discretion under Rule 12(d) of the Federal Rules of Civil Procedure," Soger v. Hous. Comm'n, 855 F.Supp.2d 524, 542 (D. Md. 2012), which provides that "[i]f, on a motion under Rule 12(b)(6)... matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56," Fed.R.Civ.P. 12(d) (emphasis added). "Nevertheless, a district judge has 'complete discretion to determine whether or not to accept the submission of any material beyond the pleadings ... or to reject it or simply not consider it.'" Sager, 855 F.Supp.2d at 542 (quoting 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1366 (3d ed. 2004)). Where, as here, the Court has not yet entered a scheduling order and Plaintiff has had no opportunity whatsoever to undertake any discovery, the Court is loath to force Plaintiff into a summary-judgment posture. Cf. Harrods Ltd v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) ("Generally speaking, 'summary judgment [must] be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition.'" (alteration in original) (quoting Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250 n.5 (1986)); Minter v. Wells Fargo Bank, N.A., 593 F.Supp.2d 788, 792 (D. Md. 2009) ("As a general rule, summary judgment is not appropriate prior to the completion of discovery."). Accordingly, the Court will decline to exercise its discretion under Rule 12(d) and will instead evaluate Defendant's Motion pursuant to Rules 12(b)(1) and 12(b)(6), excising the supplemental exhibits from its consideration.

         Ill, Analysis

         The Court will first address Defendant's argument that Plaintiff failed to exhaust his discrimination and accommodation claims with respect to any conduct before November 27, 2016. (See Mot. Dismiss Mem. Supp. at 1-2, ECF No. 11-1 at 3-4.) Then, the Court will address Defendant's argument that Plaintiff fails to state a plausible claim under either Title VII or the Rehabilitation Act. (See id.)

         A. ...


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