United States District Court, D. Maryland
K. Bredar Chief Judge.
plaintiff James Wommack sued his former employer, Ceres
Terminals, Inc. ("Ceres"), for race-based
discrimination in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000, et seq., and for
wrongful discharge in violation of the Americans with
Disabilities Act of 1990 ("ADA"), § 2 et
seq., 42 U.S.C. § 12101, et seq. Ceres
moved to dismiss, or, alternatively, for summary judgment,
and the matter is fully briefed. No. hearing is required.
See Local Rule 105.6 (D. Md. 2018). For the reasons
set forth below, Ceres's motion to dismiss Wommack's
Title VII claim will be granted and Ceres's motion for
summary judgment on Wommack's ADA claim will be
Factual and Procedural Background
central dispute in this case is whether Wommack was
terminated from his job at Ceres, a company that loads and
unloads automobiles from ships at the Port of Baltimore.
(M.T.D & M.S.J. Mem. at 2, ECF No. 6-1.) Wommack was
employed as a driver at Ceres and was
represented by the International Longshoremen's
Association, Local 33 ("Union") while employed in
this position. (Id. at 2.) Wommack injured his right
foot at Ceres in July 2014, resulting in a permanent partial
disability of his right foot. (Opp'n Mem, Ex. 1 at 12,
ECF No. 10- 1 .) After his injury, Wommack did not return
to work for several years and instead received workers'
compensation benefits, disability benefits, and accident and
sickness benefits from the STA-ILA Benefits Fund. (M.T.D
& M.S.J. Mem. at 3.) In March 2018, Wommack returned to
work at Ceres as a driver, but after one day of work he said
that he could not perform the job because of his injury.
(Id. at 3-4.) Ceres then employed Wommack in light
duty work until April 30. (Id. at 5.) According to
Ceres, light duty work "is not collective bargaining
work under the Local 333 Agreement and is offered only
as a worker's compensation benefit and means of easing an
injured employee back to work." (Id.) Light
duty employees are paid at a lower rate than employees
engaged in full duty "bargaining" work, such as
driving, and this pay is supplemented by workers'
compensation benefits. (Id. at 5 n.2.)
after Wommack began light duty work, a dispute arose
regarding whether Wommack could physically return to his full
duty job as a driver. (Opp'n Mem. at 3.) On March 28,
2018, Dr. Cohen provided an independent medical evaluation
and opined that Wommack "is capable of working full
time, full duty." (M.T.D & M.S.J. Mem. Ex. 2 at 2.)
On April 26, 2018, Wommack's physician, Dr. Miller,
stated that Wommack could not perform full duty work. (M.T.D
& M.S.J. Mem. at 4.) On April 29, 2018, Wommack's
attorney in a separate workers' compensation case filed a
complaint against Ceres challenging its position that light
duty positions are non-bargaining positions. (Opp'n Mem.
asserts he was terminated from his employment at Ceres on May
1, 2018. (Compl. at 5.) Ceres states that it "did
nothing more than contest Plaintiffs claim to continuing
worker's compensation benefits" after Dr.
Cohen's report stated Wommack was able to return to full
duty work. (M.T.D & M.S.J. Mem. at 2.) Ceres explains,
"[o]nce Plaintiff was cleared to return to work by Dr.
Cohen, Ceres stopped paying worker's compensation and
ended Plaintiffs light duty." (Id. at 5.)
this time, Wommack received a Notice of Controversion, dated
May 2, 2018, from the Department of Labor alerting him to the
fact that Ceres was challenging his right to receive
workers' compensation benefits. (Opp'n Mem. at 4, Ex.
1 at 44.) On May 4, 2018, Wommack signed an
application to apply for a job as a bulldozer operator at
Domino Sugar ("Domino"). (Opp'n Mem. Ex. 1 at
26.) In his application, Wommack stated that he was currently
on Ceres's "list" and agreed to leave that job
if his application was accepted by Domino. (Id.) His
application was subsequently accepted and he soon began
working for Domino. (M.T.D & M.S.J. Mem. at 6.) Ceres
argues that Wommack voluntarily left his job at Ceres by
accepting this job. (Id.)
6, 2018, Wommack filed a complaint with the Union in which he
sought to determine whether he was still employed by Ceres.
(Opp'n Mem. Ex. 1 at 10.) He made this request
"[b]ecause I was told by Bill Wade and the safety
officer that I could not work for Ceres anymore."
(Id.) In the Union meeting discussing this
complaint, the Board noted that "Ceres stated that Mr.
Wommack is not employable for Ceres at the present time. The
Union claims that Mr. Wommack is employable for Ceres."
(Id. at 4.)
evidence that Wommack was not fired, Ceres points to a July
13, 2018 letter it sent to Wommack's counsel in the
separate workers' compensation case. In the letter, Ceres
If you get work restrictions from Dr. Miller as to what
functions the Claimant can perform, we will be happy to see
if there is any jobs the Claimant can perform the essential
duties of the job within Dr. Miller's work restrictions,
with reasonable accommodations. Also, of course, you can
present Dr. Miller with the Ceres' job descriptions, and
see if he will sign off on them and opine that the Claimant
can safely work those jobs. If he does so and clears the
Claimant to safely work any longshore jobs, Ceres will work
the Claimant in those jobs, if his seniority gets him the
(M.T.D & M.S.J. Mem. Ex 4.) Ceres also asserts that it
could not have terminated Wommack without following the
procedure set out in the Union agreement, which Ceres states
it did not do. (Reply at 6-7, ECF No. 11.)
complaint also alleges racial discrimination in violation of
Title VII, but he presents no facts in support of this claim.
Wommack clarified in his opposition brief that he had not
intended to make a claim under Title VII and voluntarily
consented to withdrawal of this claim. (Opp'n Mem. at
Motion to File Sur-Reply
preliminary matter, the Court addresses Wommack's motion
for leave to file a sur-reply. Though sur-replies are
generally not permitted, see Local Rule 105.2(a),
the court in its discretion may allow a party to file a
sur-reply, EEOC v. Freeman, 961 F, Supp. 2d 783, 801
(D. Md. 2013), aff'd in part,778 F.3d 463 (4th
Cir. 2015). This discretion is typically used in the interest
of fairness to permit parties to respond to new matters
raised for the first time in the opposing parties' reply
briefs. See Khoury v. Meserve,268 F.Supp.2d 600,
605 (D. Md. 2003), aff'd,85 Fed.Appx. 960 (4th
Cir. 2004). However, courts have also used this discretion to
permit pro se parties to file sur-replies even where no new
matters were raised in the reply brief. See Williams v.
Bartee, Civ. No. CCB-10-935, 2011 WL 2842367, at *2 (D.
Md. July 14, 2011), aff'd sub nom. Williams v.
Merritt,469 Fed.Appx. 270 (4th Cir. 2012) (permitting
pro se party to file sur-reply that does not address new
material but also does not "unduly ...