GEORGE J. HAZEL, District Judge.
In this employment discrimination suit brought under the Americans with Disabilities Act ("ADA"), the Rehabilitation Act of 1973, and the Maryland Fair Employment Practices Act ("MFEPA"), Plaintiff Stacey Washington alleges that Defendant Montgomery County rescinded Plaintiff's employment offer because of her disability, and subjected her to "unlawful medical inquiries" regarding her disability. Montgomery County has moved to dismiss Plaintiff's Amended Complaint, or in the alternative for summary judgment. ECF No. 15. No hearing is necessary. See Loc. R. 105.6 (D. Md. 2016). For the following reasons, Montgomery County's Motion to Dismiss Plaintiff's Amended Complaint, or in the Alternative, for Summary Judgment, ECF No. 15, is denied.
Plaintiff is a resident of Hyattsville, Maryland, who has a disability that is identified in her Amended Complaint.
The Montgomery County Office of Human Resources instructed Plaintiff to undergo an examination at its Occupational Medical Services ("OMS"). Id. ¶ 28. Plaintiff completed the required Medical History Review Form and submitted it to OMS at her first examination on July 11, 2014. Id. ¶ 29. The Form did not inquire about Plaintiff's disability, and she did not disclose the disability at that time. Id. ¶ 30. At that examination, Plaintiff gave blood and urine samples and was examined by Dr. Salvador Sylvester, who "held himself out as a doctor employed by Defendant's Office of Human Resources, Occupational Medical Services." Id. ¶¶ 31-32. Sylvester communicated to Plaintiff in writing on Montgomery County Office of Human Resources letterhead. Id. ¶ 33. During the first examination, Plaintiff's blood pressure was high and Sylvester asked her to consult with her primary care physician and return for a follow-up appointment on July 21, 2014. Id. ¶ 36. There, Sylvester told Plaintiff that she had "abnormal liver tests," and Plaintiff disclosed that she had a condition related to her disability that explained the abnormal tests (she did not at the time disclose her disability). Id. ¶¶ 38, 40. Sylvester requested additional information from Plaintiff, and in March 2015, reminded her that she needed to submit the information. Id. ¶¶ 41-42.
Before Plaintiff's next appointment with Sylvester on April 16, 2015, Plaintiff provided Sylvester with letters from a specialist and her primary care doctor stating that she was "able to work without restrictions and did not pose a risk to others given her job description." Id. ¶ 43. Plaintiff alleges that at the April 16, 2015 appointment, Sylvester knew that Plaintiff's lab results were consistent with her disability and "raised questions to [Plaintiff] to confirm this diagnosis" even though it "did not impact her ability to drive a bus." Id. ¶ 46. Plaintiff finally disclosed her disability to Sylvester, who asked her "whether she had warned the phlebotomist who had just taken her blood to be `extra careful,'" a comment that made Plaintiff "feel ashamed." Id. ¶¶ 47-49. After this, Sylvester requested additional information regarding Plaintiff's disability, including all doctor's notes from 2014 and 2015, her diagnosis and treatment, prognosis, medications, test results, and additional material. Id. ¶ 51. Sylvester did not advise her that the requested information would be kept confidential from Montgomery County management. Id. ¶ 57. Plaintiff did not respond to the request for additional information "because she was concerned that her individually identifiable health information would be disclosed to her prospective employer . . . ." Id. ¶ 58. On March 3, 2016, Montgomery County rescinded Plaintiff's offer of employment. Id. ¶ 63. Plaintiff alleges that Sylvester did not medically clear Plaintiff because of her disability. Id. ¶ 64.
On October 17, 2017, Plaintiff filed her initial Complaint against Montgomery County, ECF No. 1, which she subsequently amended on December 27, 2017, ECF No. 13. Both Complaints were filed under seal, in an apparent attempt to keep the nature of Plaintiff's disability and related condition confidential.
To survive a Rule 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. "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 ("a plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do.")).
The purpose of Rule 12(b)(6) "is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006) (citation and internal quotation marks omitted). When deciding a motion to dismiss under Rule 12(b)(6), a court "must accept as true all of the factual allegations contained in the complaint," and must "draw all reasonable inferences [from those facts] in favor of the plaintiff." E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations and internal quotation marks omitted). The Court need not, however, accept unsupported legal allegations, see Revene v. Charles County Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched as factual allegations, Papasan v. Allain, 478 U.S. 265, 286 (1986), or conclusory factual allegations devoid of any reference to actual events. United Black Firefighters of Norfolk v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979).
Defendant's Motion is styled as a Motion to Dismiss or, Alternatively, for Summary Judgment. If the Court considers materials outside the pleadings, the Court must treat a motion to dismiss as one for summary judgment. Fed. R. Civ. P. 12(d). When the Court treats a motion to dismiss as a motion for summary judgment, "[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Id. When the moving party styles its motion as a "Motion to Dismiss, or in the Alternative, for Summary Judgment," as is the case here, and attaches additional materials to its motion, the nonmoving party is, of course, aware that materials outside the pleadings are before the Court, and the Court can treat the motion as one for summary judgment. See Laughlin v. Metropolitan Wash. Airports Auth., 149 F.3d 253, 260-61 (4th Cir. 1998). Further, the Court is not prohibited from granting a motion for summary judgment before the commencement of discovery. See Fed. R. Civ. P. 56(a) (stating that the court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact" without distinguishing pre-or post-discovery).
Summary judgment is appropriate if "materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials," Fed. R. Civ. P. 56(c), show that there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving for summary judgment bears the burden of demonstrating that no genuine dispute exists as to material facts. Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). If the moving party demonstrates that there is no evidence to support the nonmoving party's case, the burden shifts to the nonmoving party to identify specific facts showing that there is a genuine issue for trial. See Celotex, 477 U.S. at 322-23. A material fact is one that "might affect the outcome of the suit under the governing law." Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183 (4th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute of material fact is only "genuine" if sufficient evidence favoring the nonmoving party exists for the trier of fact to return a verdict for that party. Anderson, 477 U.S. at 248. However, the nonmoving party "cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another." Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1986). When ruling on a motion for summary judgment, "[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255.
While the Court may rule on a motion for summary judgment prior to commencement of discovery, see, e.g., Demery v. Extebank Deferred Compensation Plan (B), 216 F.3d 283, 286 (2d Cir. 2000), Federal Rule of Civil Procedure 56(d) "mandates that summary judgment be denied when the nonmovant has not had the opportunity to discover information that is essential to his opposition." Pisano v. Strach, 743 F.3d 927, 931 (4th Cir. 2014) (internal citation and quotation marks omitted). "To obtain Rule 56(d) relief, the non-moving party bears the burden of showing how discovery could possibly create a genuine issue of material fact sufficient to survive summary judgment or otherwise affect the court's analysis." Poindexter v. Mercedes-Benz Credit Corp., 792 F.3d 406, 411 (4th Cir. 2015).
As an initial matter, the Court must determine which standard of review to apply to the County's Motion; if the Court determines that it is inappropriate to treat the County's Motion as a motion for summary judgment, the Court must determine which documents, if any, it may review in assessing the Motion to Dismiss. The County argues that even if the motion is analyzed as a motion to dismiss, the Court can still look to the Medocracy contract and dismiss Plaintiff's claims based upon that document (which purportedly shows that Sylvester was an independent contractor for whose actions the County cannot be held liable). On the other hand, Plaintiff argues that the issue of whether Sylvester is an employee of the County is "fact intensive and not appropriate on a motion to dismiss." ECF No. 18 at 2. Plaintiff further argues that it would not be appropriate at this point to consider the documents attached to the County's Motion as "Plaintiff has not had the opportunity to engage in discovery on the issues presented in Defendant's presented documents and affidavits." Id. at 7. In support, Plaintiff attaches a Rule 56(d) Declaration, stating that no discovery has occurred in this case; that discovery is necessary to determine whether Sylvester was an employee of the County; and, that Defendant needs discovery to verify or disprove the representations contained in the affidavits of the County's employees. ECF No. 18 at 8-9.
The Court declines to treat the County's Motion as a Motion for Summary Judgment, as Plaintiff has identified in her attorney's Rule 56(d) Declaration a crucial factual dispute requiring discovery; whether, for purposes of Plaintiff's claims, Sylvester was an employee of the County, and whether any discriminatory conduct on his part should be imputed to the County. See, e.g., Schalk v. Associated Anesthesiology Practice, 316 F.Supp.2d 244, 249 (D. Md. 2004) (in ADA case, denying motion to dismiss where there existed a factual issue regarding whether plaintiff was properly considered an independent contractor). See also Cilecek v. Inova Health System Services, 115 F.3d 256, 261 (4th Cir. 1997) (laying out factors to examine in determining whether an individual is an employee or independent contractor, beyond merely what the individual's contract states).
Next, the Court must determine whether it may properly consider any documents extrinsic to the Amended Complaint in assessing the Motion to Dismiss. Although, as a general rule, evidence extrinsic to the Complaint should not be considered at the Rule 12(b)(6) stage, the Fourth Circuit has held that when a defendant attaches a document to its motion to dismiss, "a court may consider it in determining whether to dismiss the complaint [if] it was integral to and explicitly relied on in the complaint and [if] the plaintiffs do not challenge its authenticity." Phillips v. LCI Int'l Inc., 190 F.3d 609, 618 (4th Cir. 1999); see also Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir. 1998). In American Chiropractic Association v. Trigon Healthcare, Inc., the Fourth Circuit reasoned that "[t]he rationale underlying this exception is that the primary problem raised by looking to documents outside the complaint—lack of notice to the plaintiff—is dissipated where plaintiff has actual notice . . . and has relied upon these documents in framing the complaint." 367 F.3d 212, 234 (4th Cir. 2004) (quotations omitted). If the complaint includes only a few quotes from a document and the plaintiff's claims "do not turn on, nor are they otherwise based on, statements contained" in the extrinsic document, then the document is not integral to the complaint. Id. Courts in this Circuit have reasoned that an integral document is one that by its "very existence, and not the mere information it contains, gives rise to the legal rights asserted." Chesapeake Bay Found., Inc. v. Severstal Sparrows Point, LLC, 794 F.Supp.2d 602, 611 (D. Md. 2011).
The County argues that even if the Court considers its Motion as a 12(b)(6) motion, the Court should consider the Medocracy contract as "Plaintiff's Amended Complaint relies on the Contract to establish her claim against the County and it is integral thereto." ECF No. 19-1 at 6. Specifically, the County points to Plaintiff's allegations that Sylvester is liable for "participating in a contractual or other arrangement or relationship" with the County. Id. (quoting ECF No. 13 ¶¶ 75, 86). However, Plaintiff does not quote from the Medocracy contract, and there is no evidence that she was even aware of the existence of the contract prior to filing her Complaint. Indeed, Plaintiff also alleges that Sylvester represented that he was an employee of the County; one would assume that a County employee was in a "contractual or other arrangement" with the County. At no point in the Amended Complaint is there any indication that Plaintiff relied on the Medocracy contract, nor is it "integral" to the Amended Complaint. Thus, the Court does not consider the Medocracy contract or any extrinsic documents at this stage.
The Court next considers whether Plaintiff's Amended Complaint's allegations of disability discrimination survive the County's Motion to Dismiss. Plaintiff alleges both a "Failure to Hire" claim (Count I), ECF No. 13 at 9, and an "Unlawful Medical Inquiry" claim (Count II), id. at 10.
Relevant to both claims, the County repeatedly makes the argument that Sylvester is an independent contractor, and that any misconduct on his part cannot be imputed to the County. See, e.g., ECF No. 15-1 at 11-15; ECF No. 19-1 at 2-6. As discussed above, Plaintiff pleads that Sylvester, "held himself out as a doctor employed by Defendant's Office of Human Resources, Occupational Medical Services," ECF No. 13 ¶¶ 31-32, and communicated to Plaintiff in writing on Montgomery County Office of Human Resources letterhead. Id. ¶ 33. Thus, at the pleading stage, assuming all of the facts contained in the Amended Complaint to be true, the Court assumes that Sylvester was acting as an employee of the County, rather than as an independent contractor.
Regarding Count I, Title I of the ADA bars discrimination against an individual on the basis of disability "in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a).
Plaintiff has plausibly pleaded a violation of 42 U.S.C. § 12112(a). Plaintiff has alleged that she was not hired "because of" her disability. ECF No. 13 ¶¶ 61-64. Before Sylvester was aware of her disability, the County contacted Plaintiff to follow up regarding her medical information; once Sylvester became aware of her disability, however, the County failed to follow up with her regarding her medical information, and sent her notice that her employment offer was being rescinded. Id. Plaintiff further alleges that the County hired other applicants who did not have the same disability to fill the position she was initially offered. Id. ¶ 73. Thus, Plaintiff has plausibly alleged that she was denied an employment opportunity because of her disability.
The County argues that Count I should be dismissed because Plaintiff does not allege "that the ultimate hiring decision, i.e. rescinding the conditional offer, was made by Defendant with a discriminatory motive." ECF No. 15-1 at 11. The County further argues that Plaintiff's Amended Complaint shows that there is a non-discriminatory "legitimate reason why clearance was not given — without explanation, she did not provide requested medical information." Id. at 13. However, it is inappropriate "within the context of a Rule 12(b)(6) motion" to consider the defendant's "proffered legitimate nondiscriminatory reason[] . . . ." Bala v. Virginia Dep't of Conservation & Recreation, 532 Fed. App'x 332, 335 (4th Cir. 2013). The County argues that, unlike in Bala, here the legitimate nondiscriminatory reason for rescinding Plaintiff's employment offer is stated in the Amended Complaint itself, not proferred by the County. ECF No. 19-1 at 10-11. This is only partially correct. While the Amended Complaint does acknowledge that Plaintiff failed to provide Sylvester with certain medical information, ECF No. 13 ¶ 58, there is no indication in the Amended Complaint that she was terminated because of that; in fact, Plaintiff indicates that, in the face of her missing information, the County treated her differently once Sylvester was aware of her disability, id. ¶ 61-62. Thus, in accordance with Bala, the Court does not consider the County's proffered legitimate nondiscriminatory reason for rescinding Plaintiff's employment offer at this stage, and concludes that Plaintiff has plausibly pleaded a violation of § 12112(a) in Count I.
Regarding Count II, 42 U.S.C. § 12112(d) prohibits employers from requiring certain medical inquiries of individuals with disabilities. Section 12112(d)(2)(A) provides that generally "[e]xcept as provided in paragraph (3), a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability." Paragraph (3) provides that:
Plaintiff has plausibly pleaded a violation of 42 U.S.C. § 12112(d). Federal regulations provide that an employer "may require a medical examination (and/or inquiry) after making an offer of employment to a job applicant" but that:
29 C.F.R. § 1630.14(b).
Here, Plaintiff has alleged that Sylvester required her to submit additional requested medical information and further testing because he "knew that Ms. Washington's lab results" and condition were consistent with her disability and wanted to "confirm this diagnosis, which did not impact her ability to drive a bus" and thus was not to be used "in accordance with" the ADA. ECF No. 13 ¶¶ 41, 46. Rather than clear Plaintiff for work, once Sylvester became aware of Plaintiff's disability, he continued to seek "additional medical information related to her [disability], including all doctor's notes from 2014 and 2015, diagnosis, treatment, prognosis, follow up plan, medications, test results, and work restrictions." Id. ¶ 51. Sylvester requested this information even though he "already had notes from Ms. Washington's physicians that she was able to work without restrictions and that her condition did not pose a risk to others given her job description." Id. ¶ 83. Thus, Plaintiff has plausibly alleged that the County made "inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability" without subjecting "all entering employees . . . to such an examination regardless of disability." Assuming all facts to be true, Plaintiff has also plausibly alleged that Sylvester impermissibly used an "exclusionary criteria"—Plaintiff's disability— which was not "job-related and consistent with business necessity . . . ." Plaintiff has pleaded that Sylvester withheld Plaintiff's medical clearance solely because of her disability, and that her disability did not impact her ability to drive a school bus. See ECF No. 13 at 26, 39, 43, 64. Thus, Plaintiff has plausibly alleged violations of the ADA and 29 C.F.R. § 1630.14(b).
For the foregoing reasons, the County's Motion to Dismiss Plaintiff's Amended Complaint, or in the Alternative, for Summary Judgment, ECF No. 15, construed as a Motion to Dismiss, is denied.
