United States District Court, D. Maryland
MEMORANDUM TO COUNSEL RE
before the Court is Defendant Aurora Health Management's
(“Aurora”) Motion to Dismiss (ECF No. 13). The
Motion is ripe for disposition, and no hearing is necessary.
See Local Rule 105.6 (D.Md. 2018). For the reasons
that follow, the Court will grant the Motion.
2016, Plaintiff Gina Carbaugh began working as a geriatric
nursing assistant and certified medical transcriptionist at
Montevue Assisted Living (“Montevue”), a
geriatric care facility located in Frederick, Maryland.
(Compl. ¶¶ 6, 8, ECF No. 1). Montevue is owned
and operated by Defendant Aurora, a privately-owned
healthcare company. (Id ¶ 6, 10).
starting work at Montevue, Carbaugh was diagnosed with
pancreatitis and diabetes. (Id ¶¶ 13, 18).
These medical conditions interfere with Carbaugh's
appetite and vision, cause fatigue, and affect major life
activities, such as walking and normal function of the
digestive system. (Id ¶¶ 14, 19). At
times, Carbaugh has been hospitalized overnight to treat her
conditions, causing her to miss work. (Id
¶¶ 12, 18).
being hospitalized for approximately four days in December
2016, Carbaugh informed her supervisor Alice Leonard that she
was being treated for her conditions and expected to return
to work full-time “within a matter of weeks.”
(Id ¶ 20). However, in early January 2017,
Leonard called Carbaugh to inform her that her full-time
employment would be terminated as a result of her recent
“excessive absenteeism.” (Id ¶ 21).
Leonard informed Carbaugh that she would be put on the
“PRN” schedule and would be engaged to work on an
as-needed basis. (Id ¶ 22).
April 2017, Carbaugh called out of work due to a pancreatitis
flare-up that caused excessive vomiting. (Id ¶
28). When Carbaugh returned to work, she was subjected to
comments from her co-workers and supervisors regarding her
absences. (Id ¶ 29). On April 19, 2017,
Carbaugh took a break during a shift at work to consume food
after her blood sugar levels dropped as a result of her
diabetes. (Id ¶ 31). While on break, Carbaugh
was unable to respond to a patient call light.
(Id.). No. other employees answered the call light,
even though other employees were available to do so and at
least one employee was aware that Carbaugh was taking a break
for health-related reasons. (Id. ¶¶
31-32). Nonetheless, Carbaugh's supervisors admonished
her for failing to answer the call and ordered Carbaugh
“to hurry up and get back to work.” (Id.
the April 19, 2017 incident, Carbaugh's supervisors at
Montevue repeatedly refused her requests for more PRN hours
and failed to speak with her about possible accommodations
for her medical conditions. (Id. ¶¶ 35,
36). Ultimately, on December 7, 2017, Aurora categorized
Carbaugh as fully terminated from her employment with the
company. (Id. ¶ 38).
February 1, 2019, Carbaugh filed a Complaint against Aurora
and Montevue. (ECF No. 1). The Complaint alleges
violations of the Rehabilitation Act of 1973 as amended, 29
U.S.C. §§ 701 et seq. (2018) (Count I) and
Title 20 of the State Government Article of the Maryland
Annotated Code, Md. Code Ann., State Gov't §§
20-601 et seq. (2018) (Count II). (Compl.
¶¶ 40-58). Carbaugh seeks monetary damages as well
as injunctive and declaratory relief. (Id. ¶
April 29, 2019, Aurora filed its Motion to Dismiss. (ECF No.
13). Carbaugh filed an Opposition on May 28, 2019. (ECF No.
24). Aurora filed a Reply on June 11, 2019. (ECF No. 27).
brings its Motion to Dismiss under Rule 12(b)(6) for failure
to state a claim upon which relief can be granted. 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 the elements of the claim, the
complaint must allege sufficient facts to establish each
element. Goss v. Bank of Am., N.A., 917 F.Supp.2d
445, 449 (D.Md. 2013) (quoting Walters v. McMahen,
684 F.3d 435, 439 (4th Cir. 2012)), aff'd sub nom.
Goss v. Bank of Am., NA, 546 Fed.Appx. 165 (4th Cir.
argues that the Complaint fails to state a Rehabilitation Act
claim because Carbaugh does not allege that Aurora receives
federal funding. For her part, Carbaugh responds that
Aurora receives federal financial assistance through Medicare
and Medicaid payments it receives from its patients. The
Court agrees with Aurora.
504 of the Rehabilitation Act mandates that “no
otherwise qualified individual with a disability . . . shall,
solely by reason of her of his disability, be excluded from
the participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity
receiving Federal financial assistance.” 29
U.S.C. § 794(a) (emphasis added). Here, Carbaugh's
Complaint is devoid of any allegations that Aurora receives
federal financial assistance. Indeed, the only allegation
relating to Aurora's funding is that “Aurora is a
private-owned healthcare company.” (Compl. ¶ 6).
The Complaint plainly fails to state a claim under the
argues for the first time in her Opposition that Aurora
receives federal funding through Medicare and Medicaid
payments from its patients. As a general matter, this Court
has held that receipt of Medicare or Medicaid payments may
constitute federal financial assistance for the purposes of
the Rehabilitation Act. See Dorer v. Quest Diagnostics
Inc., 20 F.Supp.2d 898, 900 (D.Md. 1998) (permitting
Rehabilitation Act claim to proceed where defendant received
Medicare and Medicaid payments for providing laboratory
services). However, a party is not permitted to amend his
pleadings through a responsive filing. See Zachair, Ltd.
v. Driggs, 965 F.Supp. 741, 748 n.4 (D.Md. 1997),
aff'd, 141 F.3d 1162 (4th Cir. 1998). Because
Carbaugh failed to properly plead that Aurora receives
federal assistance through Medicare and Medicaid payments,
Carbaugh's Rehabilitation Act claim must be dismissed.
foregoing reasons, Aurora's Motion to Dismiss (ECF No.
13) is GRANTED. Despite the informal nature of this
Memorandum, it shall constitute an Order of this Court, and
the Clerk ...