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Miller v. Maryland Department of Natural Resources

United States District Court, D. Maryland

September 26, 2018



          George L. Russell, III United States District Judge

         THIS 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 Motions.

         I. BACKGROUND[1]

         On 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).

         On June 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.[2] (Id. ¶ 26).

         On June 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.[3] (Id. ¶ 27). At an unspecified point in time, Miller was taken off of full duty. (See id. ¶ 55).

         On July 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[4] 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).

         In late 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.”[5](Id. ¶ 67). He received no response. (Id. ¶ 69).

         On 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).

         On August 10, 2016, Miller asked to use his prescriptions but did not receive a response.[6] (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).[7] 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. ¶¶ 123-24).

         On 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).

         On 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).

         On 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);[8] (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).

         On 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).

         On 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).


         A. DNR's Motion to Dismiss and/or for Summary Judgment

          1.Conversion of DNR's Motion

         DNR 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 Supp.)).

         The 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).

         Ordinarily, 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)).

         Here, 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).

         DNR 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 dismiss.

         2. 12(b)(6) Standard of Review

         The 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 ...

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