United States District Court, D. Maryland
L. Russell, III United States District Judge
MATTER is before the Court on Defendant Maryland Department
of Natural Resources' (“DNR”) Motion to
Dismiss and/or for Summary Judgment (ECF No. 9). Also pending
before the Court are Plaintiff Thomas Miller's Motion for
Leave to Amend Complaint (ECF No. 14) and Motion for Leave to
Amend Complaint and Docket the Third Amended Complaint (ECF
No. 15). This employment discrimination action arises from
DNR's September 20, 2016 termination of Miller's
probationary employment. The Motions are ripe for
disposition, and no hearing is necessary. See Local
Rule 105.6 (D.Md. 2016). For the reasons outlined below, the
Court will grant DNR's Motion and deny Miller's
March 30, 2016, Miller began his employment with DNR as a
police recruit. (1st Am. Compl. ¶ 17, ECF No. 6). During
close quarters training on May 23, 2016, Miller sustained a
neck injury that “caused him difficulties with lifting,
running, sleeping, driving and pulling and turning his
neck.” (Id. ¶¶ 19-20). He
immediately notified his supervisors and “made multiple
requests for accommodation to Cpl. Hunt and Cpl.
Beckwith.” (Id. ¶¶ 21-22).
15, 2016, Miller met with a Head and Neck Specialist who
ordered an MRI and “cleared Miller for full duty
despite his injuries.” (Id. ¶ 23). On
June 28, 2016, Miller had an MRI. (Id. ¶ 24).
Due to Miller's “background in pathology, ”
he identified a “cervical herniation” on the MRI.
(Id. ¶ 25). The next day, Miller notified Cpl.
Beckwith and Cpl. Hunt about the herniation. (Id.
30, 2016, based on Miller's injury, the Head and Neck
Specialist ordered “restricted upper body physical
training (lifting restriction) for [thirty] days, with the
expectation that he would return to full duty after the
[thirty]-day period.” (Id. ¶ 29). That
same day, Miller received a “satisfactory”
ninety-day evaluation rating from Sgt. Jackson. (Id.
¶ 27). At an unspecified point in time, Miller was taken
off of full duty. (See id. ¶ 55).
21, 2016, Miller was scheduled for a workability examination.
(Id. ¶ 46). The examiner requested a copy of
his MRI and asked Miller whether he believed that he could
fulfill the duties of an Natural Resources Police officer.
(Id. ¶¶ 47, 49). Miller responded that he
could. (Id. ¶ 48). On July 26, 2016, Miller
received clearance to return to full duty. (Id.
¶ 55). His “managers” then ordered him
“not to possess or use any prescriptions.”
(Id. ¶ 56). About a month prior, Cpl. Hunt and
Lt. Marconi expressed concerns that Miller was abusing
his prescription medications in order to remain operational
during training. (Id. ¶ 30). Miller denied this
accusation and offered to take a drug test in order to
disprove it, but his supervisors declined Miller's offer.
(Id. ¶¶ 32, 33).
July 2016, several of Miller's classmates were caught in
possession of tobacco products on the campus, in violation of
DNR policy. (Id. ¶ 61). As a result, the entire
class was punished with a two-week disciplinary program
called “Hell Week, ” which included
“extra-difficult exercises.” (Id.
¶¶ 62, 64). Miller “sought the accommodation
of alternate shoulder exercises” to “avoid
re-aggravating his injury.”(Id. ¶ 67). He
received no response. (Id. ¶ 69).
August 8, 2016, Miller passed the Maryland Police Fitness
test. (Id. ¶ 72). The next day, the recruits
were required to take a test on natural resources law.
(Id. ¶ 78). This was an open computer test, and
the recruits were authorized to use two websites in order to
answer the questions. (Id. ¶¶ 82, 84-86).
Halfway through the test, the instructor discovered that
Miller was using an unauthorized website. (Id.
¶¶ 83-84). The instructor then took Miller's
pencil and marked the question wrong. (Id. ¶
83). Miller claimed that he did not see the two websites that
were written on the board, nor did he hear the proctor's
instructions about which ones were permitted. (Id.
¶¶ 85, 111). He admitted to the instructor that he
had used unauthorized sites to answer some of the other
questions on the test and offered to mark those wrong as
well. (Id. ¶¶ 87-88). The instructor
agreed. (Id. ¶ 89).
August 10, 2016, Miller asked to use his prescriptions but
did not receive a response. (Id. ¶¶
91-92). On August 11, 2016, Lt. Marconi informed Miller that
he was being placed back on full medical restriction and was
forbidden from participating in any physical training.
(Id. ¶¶ 94-97, 100). Lt. Marconi informed
Miller that he was being referred to a state doctor for
another workability exam. (Id. ¶ 96). Lt.
Marconi also informed Miller that he was being placed on a
three-week disciplinary probation for “cheating and
integrity issues.” (Id. ¶ 101). During
the probation period, a disciplinary review board would meet
to determine Miller's punishment. (Id.
¶¶ 101, 103). On August 18, 2016, “the
disability panel” recommended that Miller be placed on
restricted duty. (Id. ¶ 118). On August 31,
2016, Miller completed his disciplinary probation but was
ordered to remain out of uniform. (Id. ¶¶
September 1, 2016, Miller told his class that he had
herniated discs, was prescribed epidural steroids, and might
need surgery in the near future. (Id. ¶ 125).
The next day, he informed Cpl. Beckwith about his herniated
discs. (Id. ¶ 126).
September 6, 2016, DNR notified Miller that he was being
officially terminated on September 20, 2016 for cheating and,
in the meantime, was being placed on administrative leave.
(Id. ¶¶ 127-28). On October 31, 2016,
Miller filed a Charge with the EEOC (the “EEOC
Charge”). (Id. ¶ 11). On May 15, 2017,
the EEOC dismissed Miller's EEOC Charge and informed him
of his right to sue. (Id. ¶ 12).
August 15, 2017, Miller sued DNR. (ECF No. 1). On August 17,
2017, before he served DNR, Miller filed a First Amended
Complaint. (ECF No. 6). In his five-count First Amended
Complaint, Miller alleges violations of the Americans with
Disabilities Act of 2008 (the “ADA”), 42 U.S.C.
§§ 12101 et seq. (2018), the
Rehabilitation Act, 29 U.S.C. § 701 et seq.
(2018), and the Maryland Fair Employment Practices Act (the
“FEPA”), Md. Code Ann., State Gov't
§§ 20-1001 et seq. (West 2018) for: (1)
failure to accommodate (Count I); (2) a hostile work
environment (Count II); (3) unlawful termination based on
Miller's alleged disabilities (Count III); (4)
discriminatory termination based on perceived disability
(Count IV); and (5) wrongful termination based on protected
activity (Count V). (1st Am. Compl. ¶¶ 138-62).
November 21, 2017, DNR filed its Motion to Dismiss and/or for
Summary Judgment. (ECF No. 9). Miller filed an Opposition on
December 26, 2017. (ECF No. 16). On January 23, 2018, DNR
filed a Reply. (ECF No. 20).
December 22, 2017, before filing his Opposition to DNR's
Motion, Miller filed Plaintiff Thomas Miller's Motion for
Leave to Amend Complaint (ECF No. 14). Four days later, on
December 26, 2017, Miller filed Plaintiff Thomas Miller's
Motion for Leave to Amend Complaint and Docket the Third
Amended Complaint. (ECF No. 15). DNR filed a combined
Opposition on January 9, 2018. (ECF No. 19). On February 6,
2018, Miller filed a combined Reply. (ECF No. 21).
DNR's Motion to Dismiss and/or for Summary
1.Conversion of DNR's Motion
styles its Motion as a motion to dismiss under Rule 12(b)(6)
or, in the alternative, for summary judgment under Rule 56. A
motion styled in this manner implicates the Court's
discretion under Rule 12(d). See Kensington Vol. Fire
Dep't, Inc. v. Montgomery Cty., 788 F.Supp.2d 431,
436-37 (D.Md. 2011), aff'd, 684 F.3d 462 (4th
Cir. 2012). This Rule provides that when “matters
outside the pleadings are presented to and not excluded by
the court, the [Rule 12(b)(6)] motion must be treated as one
for summary judgment under Rule 56.” Fed.R.Civ.P.
12(d). The Court “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.'” Wells-Bey v. Kopp, No. ELH-12-2319,
2013 WL 1700927, at *5 (D.Md. Apr. 16, 2013) (quoting 5C
Wright & Miller, Federal Practice &
Procedure § 1366, at 159 (3d ed. 2004, 2012
United States Court of Appeals for the Fourth Circuit has
articulated two requirements for proper conversion of a Rule
12(b)(6) motion to a Rule 56 motion: notice and a reasonable
opportunity for discovery. See Greater Balt. Ctr. for
Pregnancy Concerns, Inc. v. Mayor of Balt., 721 F.3d
264, 281 (4th Cir. 2013). When 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.
See Moret v. Harvey, 381 F.Supp.2d 458, 464 (D.Md.
2005). 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).
summary judgment is inappropriate when “the parties
have not had an opportunity for reasonable discovery.”
E.I. du Pont de Nemours & Co. v. Kolon Indus.,
Inc., 637 F.3d 435, 448 (4th Cir. 2011). Yet, “the
party opposing summary judgment ‘cannot complain that
summary judgment was granted without discovery unless that
party had 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)). To raise sufficiently the issue that more discovery
is needed, the non-movant must typically file an affidavit or
declaration under Rule 56(d), explaining the “specified
reasons” why “it cannot present facts essential
to justify its opposition.” Fed.R.Civ.P. 56(d). A Rule
56(d) affidavit is inadequate if it simply demands
“discovery for the sake of discovery.”
Hamilton v. Mayor of Balt., 807 F.Supp.2d 331, 342
(D.Md. 2011) (citation omitted). A Rule 56(d) request for
discovery is properly denied when “the additional
evidence sought for discovery would not have by itself
created a genuine issue of material fact sufficient to defeat
summary judgment.” Ingle ex rel. Estate of
Ingle v. Yelton, 439 F.3d 191, 195 (4th Cir. 2006)
(quoting Strag v. Bd. of Trs., Craven Cmty. Coll.,
55 F.3d 943, 953 (4th Cir. 1995)).
Miller contends that summary judgment is premature because he
needs more discovery to sufficiently respond to DNR's
Motion. Indeed, this case is in its preliminary stages, and
the Court has yet to enter a scheduling order. See
Local Rule 104.4 (D.Md. 2016) (explaining that
“discovery shall not commence . . . until a scheduling
order is entered”). In addition, Miller presents a Rule
56(d) affidavit in which he requests additional time to
conduct discovery regarding DNR's motive for terminating
Miller's employment. Specifically, Miller requests
“the opportunity to review Defendant's internal
correspondence, and to examine [DNR]'s key witnesses at
deposition.” (Goldsmith Decl. ¶ 6, ECF No. 16-2).
captioned its Motion in the alternative for summary judgment
and presented extra-pleading material for the Court's
consideration, satisfying the notice requirement. See
Moret, 381 F.Supp.2d at 464. But discovery has not
commenced yet, and Miller requests discovery in a Rule 56(d)
affidavit. Miller also specifies the facts that he seeks to
discover, and those facts would create a genuine dispute of
material fact. See Strag, 55 F.3d at 953. As a
result, the Court construes DNR's Motion as a motion to
12(b)(6) Standard of Review
purpose of a Rule 12(b)(6) motion is to “test[ ] the
sufficiency of a complaint, ” not to “resolve
contests surrounding the facts, the merits of a claim, or the
applicability of defenses.” King v.
Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (quoting
Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th
Cir. 1999)). A complaint fails to state a claim if it does
not contain “a short and plain statement of the claim
showing that the pleader is entitled to relief, ”
Fed.R.Civ.P. 8(a)(2), or does not “state a claim to
relief that is plausible on its face, ” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550
U.S. at 556). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Id. (citing Twombly,
550 U.S. at 555). Though the plaintiff is not required to
forecast evidence to prove ...