United States District Court, D. Maryland
LIJO PANGHAT, M.D. Plaintiff
BALTIMORE VETERANS AFFAIRS MEDICAL CENTER, et al. Defendants.
L. Hollander United States District Judge
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”). 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. 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.
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.
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.
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).
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”). Plaintiff's faculty mentor was Dr.
Brajesh Lal, Professor of Surgery. Id.
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[.]”
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.
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.
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
received a letter from Dr. Barlett, dated February 4, 2016.
ECF 5-11 (“Termination Letter”). It said, in
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
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.
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.
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.
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.
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”). 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”).
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.
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.
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.
Standard of Review
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
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.
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.
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
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.
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).
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.
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
“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)).
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).
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).
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
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.
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