United States District Court, D. Maryland
L. Russell, III United States District Judge
MATTER is before the Court on Defendants Morgan State
University (the “University”) and DeWayne
Wickham's (“Dean Wickham”) Defendants'
Motion to Dismiss or, in the Alternative, for Summary
Judgment (ECF No. 5). This case arises from the termination
of Plaintiff Michele Williams' University employment in
2017. The Motion is fully briefed, and no hearing is
necessary. See Local Rule 105.6 (D.Md. 2018). For
the reasons outlined below, the Court will grant the Motion.
University, a State agency in Baltimore, Maryland, hired
Plaintiff Michele Williams on January 2, 2014 as the Director
of Broadcast Operations for its television and radio
stations, including WEAA 88.9 FM (“WEAA”). (1st
Am. Compl. ¶¶ 6, 10, 18-20, ECF No. 1-12). The
University holds a license administered by the Federal
Communications Commission (“FCC”) for the
operation of its radio frequency. (Id. ¶¶
22- 23). The University receives federal funding, including
from the U.S. Department of Education (“DoE”) and
the Corporation for Public Broadcasting (“CPB”),
which support its broadcasting operations, including WEAA.
(Id. ¶¶ 21, 25-30). The University also
receives funding from the State of Maryland, which has
received funds under the American Recovery and Reinvestment
Act (the “ARRA”). (Id. ¶¶
39-40). The FCC license and public funding come with various
legal obligations, including reporting requirements.
(Id. ¶¶ 34-35). As Director of Broadcast
Operations, Williams was responsible for management and
oversight of the broadcast operations, including scheduling
certain programming and certifying the audited financial
statements the University submitted to CPB. (Id.
¶¶ 20, 45, 67).
March 2016, WEAA hosted a public debate featuring the
Democratic candidates for Mayor of Baltimore. (Id.
¶ 41). Encouraged by that party primary debate, Williams
began organizing a debate for the four general election
candidates to be held on November 3, 2016. (Id.
¶¶ 43-45). In emails leading up to the debate,
Williams told her supervisor, Dean Wickham, and University
President David Wilson (“President Wilson”) that,
per FCC rules, each candidate would be provided equal time
during the debate, and President Wilson agreed. (Id.
¶¶ 46-49). After the debate was scheduled,
Catherine Pugh, the Democratic candidate, emailed Dean
Wickham to tell him she could not attend the debate but
“would be interested in participating in an on-air
interview at another time prior to the election.”
(Id. ¶ 50). Wickham forwarded Pugh's email
to Williams, instructing Williams to cancel the debate
because not all the candidates would be participating.
(Id. ¶ 51). These instructions were
“contradictory to the previously described requirement
that a non-attending candidate be provided an interview
on-air, ” and Williams inferred that Dean Wickham
favored Pugh and was violating FCC regulations. (Id.
¶¶ 53-58). After the debate was cancelled, and per
an FCC regulation regarding “Equal opportunities,
” 47 C.F.R. § 73.1941, Williams scheduled air time
for the Republican and Green Party candidates at their
requests and offered time to Pugh to match the time the
Independent candidate had already received. (Id.
¶¶ 60-62). Dean Wickham then sent Williams
“threatening text messages and emails, ”
including telling her that her actions would “not end
well” for her. (Id. ¶¶ 63-64).
Williams told President Wilson, University Provost Gloria
Gibson (“Dr. Gibson”), the University's Vice
President of Human Resources, and others that Dean Wickham
had violated the Hatch Act, 5 U.S.C. § 7323 (2018), FCC
Regulation 47 C.F.R. § 73.1941 (2018), and state and
federal law concerning political activity by a state agency
receiving federal funding. (Id. ¶ 65).
late 2016, Williams “began noticing serious
discrepancies with respect to WEAA's actual operating
expenses and WEAA's expenses as being reported by the
University” to the CPB and the State. (Id.
¶ 73). Williams knew operating expenses were
approximately $750, 000.00, but in 2014, 2015, and 2016, the
University reported that WEAA had operating expenses of
approximately $1, 750, 000.00 to $1, 900, 000.00.
(Id. ¶¶ 74-75). The net effect of this
reporting was an increase in funding from the State, DoE, and
CPB, among other sources. (Id. ¶ 77). When
asked to endorse the operating expenses the University
reported, Williams told Dean Wickham and other University
officials that she believed the numbers were inconsistent
with those reported to the University's financial team
and were “intentionally inflated to pad the
University's funding” in violation of federal law.
(Id. ¶¶ 78-81). Williams refused to sign
off on the 2016 financial statements and, in early 2017, told
Dean Wickham and other University officials that she was
“blowing the whistle” on the overstated operating
costs, including to the CPB. (Id. ¶¶ 83-
88). On May 2, 2017, the University terminated Williams'
employment, effective August 8, 2019. (Id. ¶
about November 27, 2017, Williams filed a complaint under the
Maryland Whistleblower Law, Md. Code Ann., State Pers. and
Pens. [“SP&P”] § 5-309 with the State of
Maryland's Office of Secretary of State (“Secretary
of State”). (Defs.' Mot. Dismiss Altern. Summ J.
[“Defs.' Mot.”] at 3; id. Ex. 1
[“Administrative Complaint”] at 10, ECF No.
April 26, 2018, Williams filed a Complaint in the Circuit
Court for Baltimore City, Maryland. (Not. Removal ¶ 1,
ECF No. 1; Not. Removal Ex. 2 [“Compl.”], ECF No.
1-4). On November 30, 2018, Williams filed a First Amended
Complaint. (Not. Removal Ex. 11 [“Not. Filing 1st Am.
Compl.”] at 2, ECF No. 1-13). The First Amended
Complaint alleges: wrongful termination in violation of
Maryland public policy (Count I); defamation (Count II); and
retaliation in violation of the National Defense
Authorization Act (“NDAA”), 41 U.S.C. §
4712, et seq. (2018), and the ARRA, Pub. L. No.
111-5, § 1553, 123 Stat. 115 (2009) (Count
III). (1st Am. Compl. ¶¶ 103-38).
Williams brings Counts I and III against both Defendants;
Count II is only against Dean Wickham. (See id. at
11, 15, 16). Williams seeks injunctive relief and monetary,
including punitive, damages. (Id. at 19).
January 2, 2019, Defendants removed the case to this Court.
(ECF No. 1). On January 9, 2019, Defendants filed their
Motion to Dismiss or, in the Alternative, for Summary
Judgment. (ECF No. 5). On February 11, Williams filed her
Opposition. (ECF No. 11). On March 20, 2019, Defendants filed
a Reply. (ECF No. 16).
style their 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 Volunteer
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)).
Williams filed a 56(d) affidavit, requesting certain
discovery. (Williams R. 56(d) Aff., ECF No. 11-3). The Court,
therefore, will not convert the Motion to one for summary