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Panghat v. Baltimore Veterans Affairs Medical Center

United States District Court, D. Maryland

December 27, 2019

LIJO PANGHAT, M.D. Plaintiff


          Ellen L. Hollander United States District Judge

         Lijo Panghat, M.D., the self-represented plaintiff, filed suit against his former employers, the University of Maryland, Baltimore (“UM”) and the “Baltimore Veterans Affairs Health Center” (the “VA”), alleging, inter alia, that he was unlawfully terminated from a Post-Doctoral fellowship position in UM's Department of Surgery. ECF 5 (the “Complaint”).[1] The 44-page Complaint appears to lodge claims for denial of due process (ECF 5, ¶¶19-70, 108); breach of contract (id. ¶¶ 105-07); intentional infliction of emotional distress (“IIED”) (id. ¶¶ 114, 129-33); wrongful discharge (id. ¶¶ 116, 122); and misrepresentation. Id. ¶¶ 134-42.[2] Plaintiff also appears to assert a retaliation claim under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (“Title VII”). ECF 5, ¶¶ 5, 115. Thirteen exhibits are appended to the Complaint. ECF 5-2 to ECF 5-14.

         UM has moved to dismiss the Complaint, pursuant to Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 12(b)(6). ECF 16. The motion is supported by a memorandum of law (ECF 16-1) (collectively, the “UM Motion”), and eighteen exhibits. ECF 16-3 to ECF 16-20. The VA also moved to dismiss under Rules 12(b)(1) and 12(b)(6) or, in the alternative, for summary judgment under Fed.R.Civ.P. 56(a) (ECF 17), supported by a memorandum. ECF 17-1 (collectively, the “VA Motion”). Plaintiff opposes both motions. ECF 25; ECF 26. And, defendants have replied. ECF 27; ECF 36.

         After the motions became ripe, plaintiff submitted a “Motion To Submit New Evidence To Further Support The Case of Dr. Panghat” (ECF 37) (“Motion to Supplement”), along with an affidavit and two exhibits. ECF 37-1 to ECF 37-3. UM opposes the Motion to Supplement (ECF 38), and plaintiff has replied. ECF 39; ECF 39-1 to ECF 39-3. In addition, plaintiff filed a motion for entry of default against the VA. ECF 40 (“Motion for Entry of Default”). The VA opposes the Motion for Entry of Default. ECF 41.

         No hearing is necessary to resolve the motions. See Local Rule 105.6. For the reasons that follow, I shall grant the UM Motion (ECF 16) and VA Motion (ECF 17), and I shall deny the Motion to Supplement (ECF 37) as well as the Motion for Entry of Default (ECF 40).

         I. Background[3]

         A. Factual Background

         Dr. Panghat is an Indian national working in the United States on a J-1 visa. ECF 5, ¶ 1. In September 2015, he received an offer from UM to serve as a Post-Doctoral Fellow at UM's School of Medicine, in the Department of Surgery, Division of Vascular Surgery. Id. His offer was memorialized in a letter dated September 10, 2015, signed by Stephen T. Barlett, M.D., the Chairman of UM's Surgery Department. ECF 5-4 (“Offer Letter”).[4] Plaintiff's faculty mentor was Dr. Brajesh Lal, Professor of Surgery. Id.

         According to the terms of the Offer Letter, the position was “expected to be for one year, ” with the possibility of “renewals up to a maximum of 5 years in the School.” Id. Further, it provided that Panghat's appointment as a “Visiting Post-Doctoral Fellow will end when you resign or after notice of termination per the UMSOM [University of Maryland School of Medicine] Scholar Fellow Policy, whichever is sooner.” Id. Under the terms of the UMSOM Scholar Fellow Policy, “[a] Scholar Fellow appointment may be terminated by the Unit Head (Dean, Chair, Director), with or without cause, before expiration for disciplinary or non-disciplinary reasons[.]” ECF 5-6 (“Fellow Policy”). The Fellow Policy further provided that fellows “are to be provided with a minimum of 60 calendar days' written notice when an appointment is to be terminated.” Id. However, it also explained that “[e]xceptions to providing the requisite 60 day notice may be sought through the [School of Medicine] Dean's Office in extraordinary circumstances[.]” Id.

         As part of his fellowship, Dr. Panghat also worked part-time at the VA's Health Center in Baltimore. ECF 5, ¶¶ 2, 12. According to plaintiff, he was a “WOC (Without Compensation) VA employee.” Id. ¶ 3.

         Plaintiff alleges that while at the VA, he was sexually harassed by a senior VA surgeon, Dr. Preeti Rebecca John, with whom he worked at the direction of his UM supervisor, Dr. Lal. ECF 5, ¶¶ 3, 15. Plaintiff “complained to his supervisors” that he was being sexually harassed by Dr. John. Id. ¶ 3. But, “instead of resolving this problem, his supervisors suddenly became very hostile against him.” Id.; see Id. ¶ 16. In addition, the harassment from Dr. John allegedly “increased manifold.” Id. ¶ 16.

         On January 19, 2016, plaintiff met with Dr. Lal and Dr. Rajabrata Sarkar, another senior physician in the Surgery Department. Id. ¶ 17. During the meeting, Dr. Sakar allegedly “made an absolutely wild false allegation against [plaintiff] in the presence of Dr. Lal[.]” Id. Specifically, Dr. Sakar accused plaintiff of “stalking another employee[.]” Id. Dr. Lal then told plaintiff that he was “terminated forthwith on the grounds of this so-called sexual harassment of a colleague.” Id. ¶18. When plaintiff tried to respond, “Dr. Lal refused to give him an opportunity to speak[.]” Id. Rather, UM “summarily” terminated him. Id.

         Plaintiff received a letter from Dr. Barlett, dated February 4, 2016. ECF 5-11 (“Termination Letter”). It said, in part, id.:

This letter is to inform you that in accordance with the policies applicable to the employment of Post-Doctoral Fellows, your position with the University of Maryland, Baltimore is being terminated for cause. Specifically, as part of a sexual harassment complaint and investigation against you, you were directed to cease all interactions with the Complainant. Thereafter, you continued to make contact with her, and you continued to engage in conduct similar to which you had been warned to cease. Your failure to follow the direct order to refrain from contacting the Complainant constitutes serious misconduct and could be interpreted as an attempt to harass or intimidate her in violation of university policy.

         Further, the Termination Letter advised that, “[d]ue to the extraordinary circumstances of the situation, grounds exist for immediate termination.” Id. However, Dr. Bartlett stated: “Notwithstanding this fact, UMB is electing to give you 60 days' notice from the date you spoke with Dr. Rajabrata Sarkar such that your discharge will be effective March 18, 2016.” Id. The Termination Letter warned plaintiff that UM would no longer sponsor his J-1 visa, meaning he needed to either depart the United States no later than thirty days from March 18, 2016, or adjust his visa status. Id.

         Following plaintiff's termination, he lodged a complaint with UM's Title IX Director. ECF 5, ¶ 5; see Id. ¶ 23. Plaintiff alleges that UM responded by “deliberately blocking his transfer to Johns Hopkins Medical Institutions (JHMI) to take up a new job of a post-doctoral fellow[.]” Id. ¶ 5. Further, he claims that UM “knowingly and viciously acted in a manner due to which the status of [plaintiff's] valid Visa was irrevocably jeopardized.” Id.; see Id. ¶ 88(b). According to plaintiff, he has not worked as a physician since January 2016. Id. ¶ 6.

         B. Procedural History

         On June 12, 2017, Dr. Panghat, without counsel, filed a defamation lawsuit against UM in the Circuit Court for Baltimore City. See Panghat v. Univ. of Md., Balt., 24-C-17-003267 (“Defamation Action”); see also ECF 16-3, ¶ 8 (“Defamation Complaint”). Plaintiff alleged that the Termination Letter was defamatory and should not have been sent to the University's Office of International Services. ECF 16-3, ¶ 14. The Defamation Complaint contained a lengthy recitation of factual allegations, as well as numerous exhibits. And, it alleged that UM “had committed a large number of other serious offenses” against him, including “wrongful termination, breach of contract and retaliation.” Id. ¶ 6.

         In the Defamation Complaint, plaintiff acknowledged that he was confining his lawsuit to defamation but planned to file future lawsuits. He said: “[I]n this present Complaint the Plaintiff is not including these other offenses, as these will be taken up separately at a later date. At present Plaintiff is taking up only the case of defamation against [the University] because there is a statuette [sic] of limitations for this of one year that is fast approaching.” Id. ¶ 7.

         UM moved to dismiss the Defamation Action, asserting, inter alia, that it was immune from suit due to plaintiff's failure to file a notice of his claim with the State Treasurer's Office, as required by the Maryland Tort Claims Act (“MTCA”), Md. Code (2014 Repl. Vol.), §§ 12-101 et. seq., of the State Government Article (“S.G.”). ECF 16-11 (“UM Motion to Dismiss Defamation Complaint”). The circuit court granted UM's motion on the ground that plaintiff had failed to submit a timely notice of claim to the State Treasurer, as required by the MTCA, nor had he shown good cause for the failure to do so. ECF 16-14 (“Circuit Court Order”).[5] Plaintiff appealed to the Maryland Court of Special Appeals, which affirmed the circuit court's order in an unpublished per curiam opinion on March 5, 2019. ECF 16-17 (“Court of Special Appeals Opinion”).

         Dr. Panghat initiated the instant action in the Circuit Court for Baltimore City on January 18, 2019. ECF 1. On April 2, 2019, the United States timely removed the case to this Court on behalf of the VA. Id.; see also ECF 10. Thereafter, UM filed a motion to dismiss (ECF 16), and the VA moved to dismiss or, in the alternative, for summary judgment. ECF 17. Plaintiff opposes the motions. ECF 25; ECF 26. And, defendants replied. ECF 27; ECF 36.

         On November 7, 2019, plaintiff filed the Motion to Supplement. ECF 37. There, plaintiff avers that he has obtained “crucial new evidence that is vital and extremely pertinent to this Case[.]” Id. at 1. He alleges that the Maryland Commission on Civil Rights (“MCCR”), with whom he lodged a complaint, “was mislead [sic] by Defendant UM.” Id. at 2. And he asserts that the MMCR's Written Finding (ECF 16-20) and the right-to-sue letter (ECF 16-19) issued to him by the Equal Employment Opportunity Commission (“EEOC”) are “erroneous.” Id. UM filed an opposition to the Motion to Supplement ECF 38), and plaintiff replied. ECF 39.

         Plaintiff filed a “Request to Clerk of Count to Enter Order of Default” on December 13, 2019. ECF 40. In the motion, plaintiff seeks an entry of default against the VA on the ground that the VA “failed to plead or otherwise present its defense against” plaintiff's opposition. ECF 40. The VA responded on December 20, 2019. ECF 41.

         II. Standard of Review

         A. Rule 12(b)(1)

         Under Rule 12(b)(1), the plaintiff bears the burden of proving, by a preponderance of evidence, the existence of subject matter jurisdiction. See Demetres v. East West Const., Inc., 776 F.3d 271, 272 (4th Cir. 2015); see also The Piney Run Preservation Ass'n v. Cty. Comm'rs of Carroll Cty., 523 F.3d 453, 459 (4th Cir. 2008); Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999).

         A challenge to subject matter jurisdiction under Rule 12(b)(1) may proceed “in one of two ways”: either a facial challenge, asserting that the allegations pleaded in the complaint are insufficient to establish subject matter jurisdiction, or a factual challenge, asserting “‘that the jurisdictional allegations of the complaint [are] not true.'” Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (citation omitted); accord Durden v. United States, 736 F.3d 296, 300 (4th Cir. 2013). A factual challenge can assert that facts outside the four corners of the complaint preclude the exercise of subject matter jurisdiction. Id.

         In a facial challenge, “the facts alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction.” Kerns, 585 F.3d at 192. On the other hand, in a factual challenge, “the district court is entitled to decide disputed issues of fact with respect to subject matter jurisdiction.” Id. In that circumstance, the court “may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Velasco v. Gov't of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004); see also In re KBR, Inc., Burn Pit Litig., 744 F.3d 326, 333 (4th Cir. 2014); Evans, 166 F.3d at 647.

         Here, UM asserts that Eleventh Amendment immunity forecloses plaintiff's breach of contract and tort claims. ECF 16-1 at 14-17. Likewise, the VA maintains that plaintiff's tort and due process claims are barred by sovereign immunity because plaintiff failed to exhaust his administrative remedies. ECF 17-1 at 9-10, 14-15. The Fourth Circuit recently reiterated that the defense of sovereign immunity is a jurisdictional bar, stating that “‘sovereign immunity deprives federal courts of jurisdiction to hear claims, and a court finding that a party is entitled to sovereign immunity must dismiss the action for lack of subject-matter jurisdiction.'” Cunningham v. Gen. Dynamics Info. Tech., Inc., 888 F.3d 640, 649 (4th Cir. 2018) (quoting Ackerson v. Bean Dredging LLC, 589 F.3d 196, 207 (5th Cir. 2009)). Thus, defendants raise a facial challenge to the Court's subject matter jurisdiction, and I shall assume the truth of plaintiff's allegations.

         B. Rule 12(b)(6)

         As noted, the VA Motion is styled as a “Motion to Dismiss Or, In the Alternative, For Summary Judgment.” ECF 17-1. A motion styled in the alternative implicates the court's discretion under Rule 12(d) of the Federal Rules of Civil Procedure. See Kensington Vol. Fire Dep't, Inc. v. Montgomery Cty., 788 F.Supp.2d 431, 436-37 (D. Md. 2011).

         Ordinarily, a court “is not to consider matters outside the pleadings or resolve factual disputes when ruling on a motion to dismiss.” Bosiger, 510 F.3d at 450. However, under Rule 12(b)(6), a court, in its discretion, may consider matters outside of the pleadings, pursuant to Rule 12(d). If the court does so, “the motion must be treated as one for summary judgment under Rule 56, ” and “[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d). But, 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; 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).[6]

         A district judge 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.” 5C Wright & Miller, Federal Practice & Procedure § 1366 (3d ed. 2018). This discretion “should be exercised with great caution and attention to the parties' procedural rights.” Id. In general, courts are guided by whether consideration of extraneous material “is likely to facilitate the disposition of the action, ” and “whether discovery prior to the utilization of the summary judgment procedure” is necessary. Id.

         In general, summary judgment is inappropriate “where the parties have not had an opportunity for reasonable discovery.” E.I. du Pont de Nemours and Co. v. Kolon Indus., Inc., 637 F.3d 435, 448-49 (4th Cir. 2011). As the Fourth Circuit has said, when a district judge rules on a summary judgment motion prior to discovery, it is akin to “for[cing] the non-moving party into a fencing match without a sword or mask.” McCray v. Md. Dep't of Transp., Md. Transit Admin., 741 F.3d 480, 483 (4th Cir. 2014); accord Putney v. Likin, 656 Fed.Appx. 632, 639 (4th Cir. 2016) (per curiam).

         However, “the party opposing summary judgment ‘cannot complain that summary judgment was granted without discovery unless that party has 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 adequately the issue that discovery is needed, the nonmovant typically must file an affidavit or declaration pursuant to Rule 56(d) (formerly Rule 56(f)), explaining why, “for specified reasons, it cannot present facts essential to justify its opposition, ” without needed discovery. Fed.R.Civ.P. 56(d); see Harrods, 302 F.3d at 244-45 (discussing affidavit requirement of former Rule 56(f)).

         To justify a denial of summary judgment on the grounds that additional discovery is necessary, the facts identified in a Rule 56 affidavit must be “essential” to the opposition. Fed.R.Civ.P. 56(d). A nonmoving party's Rule 56(d) request for additional discovery is properly denied “where the additional evidence sought for discovery would not have by itself created a genuine issue of material fact sufficient to defeat summary judgment.” Strag v. Bd. of Trs., Craven Cmty. Coll., 55 F.3d 943, 954 (4th Cir. 1995); see McClure v. Ports, 914 F.3d 866, 874 (4th Cir. 2019); Pisano v. Strach, 743 F.3d 927, 931 (4th Cir. 2014); Amirmokri v. Abraham, 437 F.Supp.2d 414, 420 (D. Md. 2006), aff'd, 266 Fed.Appx. 274 (4th Cir. 2008) (per curiam), cert. denied, 555 U.S. 885 (2008).

         If a nonmoving party believes that further discovery is necessary before consideration of summary judgment, the party who fails to file a Rule 56(d) affidavit does so at his peril, because “‘the failure to file an affidavit . . . is itself sufficient grounds to reject a claim that the opportunity for discovery was inadequate.'” Harrods, 302 F.3d at 244 (citations omitted). But, the non-moving party's failure to file a Rule 56(d) affidavit cannot obligate a court to issue a summary judgment ruling that is obviously premature. “This is especially true where, as here, the non-moving party is proceeding pro se.” Putney v. Likin, 656 Fed.Appx. 632, 638 (4th Cir. 2016).

         Although the Fourth Circuit has placed “‘great weight'” on the Rule 56(d) affidavit, and has said that a mere “‘reference to Rule 56(f) [now Rule 56(d)] and the need for additional discovery in a memorandum of law in opposition to a motion for summary judgment is not an adequate substitute for [an] affidavit, '” the appellate court has “not always insisted” on a Rule 56(d) affidavit. Id. (internal citations omitted). According to the Fourth Circuit, failure to file an affidavit may be excused “if the nonmoving party has adequately informed the district court that the motion is premature and that more discovery is necessary” and the “nonmoving party's objections before the district court ‘served as the functional equivalent of an affidavit.'” Id. at 244-45 (internal citations omitted).

         Dr. Panghat, who is without counsel, has not filed an Affidavit under Rule 56(d). And, he has submitted numerous exhibits in opposing defendants' motions. See ECF 25-1 to ECF 25-4; ECF 26-1 to ECF 25-5. However, plaintiff has not yet had an opportunity to engage in discovery. And, plaintiff vigorously argues that the record is not sufficiently developed. ECF 25 at 23-24; ECF 26 at 29-30. Indeed, after briefing concluded on the motions to dismiss, plaintiff filed a motion seeking leave of court to submit additional evidence in furtherance of his case. ECF 37. Accordingly, I shall construe the VA Motion as a motion to dismiss.

         A defendant may test the legal sufficiency of a complaint by way of a motion to dismiss under Rule 12(b)(6). In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010), aff'd sub nom., McBurney v. Young, 569 U.S. 221 (2013); Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule 12(b)(6) motion constitutes an assertion by a defendant that, even if the facts alleged by a plaintiff are true, the complaint fails as a matter of law “to state a claim upon which relief can be granted.” Whether a complaint states a claim for relief is assessed by reference to the pleading requirements of Fed.R.Civ.P. 8(a)(2). That rule provides that a complaint must contain a “short and plain statement of the claim showing that the pleader is ...

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