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Wommack v. Ceres Terminals, Inc.

United States District Court, D. Maryland

September 12, 2019

JAMES WOMMACK, Plaintiff
v.
CERES TERMINALS, INC., Defendant

          MEMORANDUM

          James K. Bredar Chief Judge.

         Pro se 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 denied.[1]

         I. Factual and Procedural Background

         The 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 .)[2] 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.)

         Soon 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. at 4.)

         Wommack 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.)

         Around 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.)[3] 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.)

         On June 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.)

         As 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 writes:

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 job.

(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.)

         Wommack's 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 1-2.)

         II. Motion to File Sur-Reply

         As a 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 ...


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