Sherif v. Univ. of Md. Med. Ctr.

• Decision Date: 26 August 2015
• Docket Number: Civil No. WDQ–14–2679.
• Parties: Taju SHERIF, Plaintiff, v. UNIVERSITY OF MARYLAND MEDICAL CENTER, Defendant.
• Court: U.S. District Court — District of Maryland

127 F.Supp.3d 470

Taju SHERIF, Plaintiff,

v.UNIVERSITY OF MARYLAND MEDICAL CENTER, Defendant.

Civil No. WDQ–14–2679.

United States District Court, D. Maryland, Northern Division.

Signed Aug. 26, 2015.

Alan Lescht, Stephanie Ruiter, Alan Lescht and Associates PC, Washington, DC, for Plaintiff.

Alexander P. Berg, Randi Klein Hyatt, Kollman & Saucier PA, Timonium, MD, for Defendant.

MEMORANDUM OPINION

WILLIAM D. QUARLES, JR., District Judge.

Taju Sherif sued the University of Maryland Medical Center ("UMMC") for employment discrimination in violation of the Family and Medical Leave Act of 1993 ("FMLA").¹ ECF Nos. 1, 15.² Pending is UMMC's motion to dismiss, or alternatively, for summary judgment. ECF No. 4. No hearing is necessary. Local Rule 105.6 (D.Md.2014). For the following reasons, UMMC's motion, construed as one for summary judgment, will be granted.

I. Background³

On June 20, 2011, UMMC hired Sherif as a Medical Technologist in the UMMC Laboratories of Pathology ("Path Lab"). ECF Nos. 4–3; 11–2 ¶ 1. Sherif was supervised by Jennifer Christophi and Nancy Pabst. ECF Nos. 4–6 ¶ 2; 4–8 ¶ 2. David Hornbeck—Path Lab Associate Director—supervised Christophi and Pabst. See, e.g., ECF No. 4–6 ¶ 2. Neddra King served as the Path Lab's Human Resources Business Partner, and Ryan Lucken as UMMC Human Resources Recruitment Specialist. ECF Nos. 4–7 ¶ 2; 4–9 ¶ 2.

On January 10, 2014, Sherif received approval for a 20 day vacation—from February 26 to March 24, 2014—for a trip to Ethiopia. ECF No. 4–14; see also ECF No. 11–2 ¶ 4. On about March 23, 2014, Sherif apparently contracted malaria.⁴ ECF No. 11–2 ¶ 6. On March 24, 2014, Sherif visited a clinic in his village for treatment; it referred him to a larger clinic, "Ethio Tebib." Id. ¶ 8.

The parties dispute the number of times Sherif contacted Christophi about his illness. Sherif avers that he contacted Christophi on March 25, 2014 and told her "of [his] situation and that [he] was unable to return to the United States until [he] recovered." ECF No. 11–2 ¶ 9.⁵ Sherif further avers that he called Christophi on March 26, 2014 and told her he was being tested for malaria. Id. Christophi avers that, on March 25, 2014, the day he had been due back at work, Sherif called her and told her that he was still in Ethiopia, sick, and unable to return. ECF No. 4–6 ¶ 5. During that same call, Sherif further stated that he thought he had malaria, was about to be seen by a doctor, and would call the next day to provide an update.Id. Christophi avers that Sherif did not call her on March 26, 2014. Id. 1 6. On March 27 or 28, 2014, Sherif called Christophi using the same long distance telephone number he had used on March 25, but the call was dropped. Id. ¶ 6; ECF No. 11–2 ¶ 13. Christophi tried to call Sherif on that same number, but the call did not connect;⁶ attempts to reach Sherif at his home and cellular telephone numbers were unsuccessful. ECF No. 4–6 ¶ 6. On March 29, 2014, Sherif lost his cellular telephone. ECF No. 11–2 ¶ 15. Because of the remote location of his parents' home in Ethiopia, Sherif was unable to access the internet or make international telephone calls. Id. ¶ 16.

On April 2, 3, 4, and 14, 2014, Christophi emailed Sherif at his UMMC email address asking when he would return to work. ECF Nos. 4–15, 4–16, 4–17, 4–18.⁷ Sherif had been unable to access his work email address while in Ethiopia. ECF No. 11–2 ¶ 20. On April 3, 2014, UMMC mailed FMLA paperwork⁸ to Sherif at his home address. ECF Nos. 4–7 ¶ 6; 14–1 ¶ 3; 14–2. The paperwork was not returned as undeliverable. ECF No. 4–7 ¶ 6. According to Sherif, he never received the FMLA paperwork "during [his] absence." ECF No. 11–2 ¶ 19.

On April 15, 2014, UMMC mailed Sherif a certified letter informing him that his "employment ... may be in jeopardy due to [his] manager's inability to contact [him] regarding [his] schedule." ECF No. 4–19. It noted Christophi's four attempts to contact him by email, and that it had "not received any communication from [Sherif] regarding [his] schedule, or [his] intent to return to work." Id. The letter informed Sherif that he had "failed to follow established departmental policy and procedure for informing [his] department of [his] availability," and that he must contact King or Christophi by 5:00 p.m. on leave is unforeseeable, the employee must provide notice "as soon as practicable, typically the same day or next business day after learning of the need for leave." Id. Additionally, April 25, 2014, "or this will be considered your resignation." Id.⁹

On April 16, 17, and 21, 2014, Pabst tried to contact Sherif using his emergency contact telephone number, but no one answered. ECF No. 4–8 ¶ 6. Pabst checked the employee telephone number listed in the Path Lab, but it was the same as Sherif's emergency contact telephone number. Id. Pabst also checked with Sherif's co-workers to see if anyone had heard from him, but no one had. Id. ¶ 8. On April 28, 2014, UMMC terminated Sherif's employment, deeming it "a voluntary resignation." ECF No. 4–21.

Sherif had recovered from his illness by the end of April and planned to leave Ethiopia on April 30, 2014; however, "violent demonstrations" prevented him from leaving. ECF No. 11 ¶ 21.¹⁰ On May 5, 2014, Sherif obtained a doctor's note stating that he had been treated for malaria from March 26, 2014 to May 5, 2014. Id. ¶ 23.

On May 3, 2014, UMMC advertised an opening for Sherif's position. ECF No. 4–9 ¶ 3. UMMC typically posts an opening for at least one week and reviews all applications received that week. Id. ¶¶ 3–4.¹¹ In this case, Lucken sent Hornbeck, the hiring manager for Sherif's position, about six applications. Id. ¶ 3. Hornbeck told Lucken that he planned to interview several candidates; thus, Lucken decided that he did not need to send Hornbeck additional applications. Id. ¶ 5. On May 7, 2014, after a previous unsuccessful attempt, King's April 15, 2014 letter was delivered to Sherif's home. ECF Nos. 4–7 ¶ 7.¹²

On May 12, 2014, Sherif returned to the United States. EOF No. 11–2 ¶ 24. On May 13 or 14, 2014, Sherif called Christophi and told her that he was back and wanted to return to work. EOF No. 4–6 ¶ 9. Christophi told him to contact Human Resources. Id.; ECF No. 11–2 ¶ 25.

On May 15, 2014, Sherif went to UMMC and spoke with King. ECF No. 4–7 ¶ 8. King told Sherif that his employment had been terminated because he had failed to communicate with UMMC about his status. Id. Sherif told her that he had been sick with malaria. ECF No. 11–2 ¶ 26. According to King, she asked him why he had not contacted UMMC, and whether he had completed FMLA paperwork or had documents showing that he had been treated by a doctor in Ethiopia; Sherif did not respond or provide her with any documents. ECF No. 4–7 ¶ 8. According to Sherif, "[a]t no point did [King] or anyone else ask that I fill out FMLA papers or provide medical certification or advise him of the consequences of [his] failure to do so." ECF No. 11–2 ¶ 29. King told Sherif that the termination was not appealable. ECF No. 11–2 ¶ 27. That day, Sherif also told Christophi and Pabst that he had been sick and out of the country, but did not explain why he had not contacted UMMC, and did not provide documentation about his illness or FMLA paperwork. ECF Nos. 4–6 ¶ 10; 4–8 ¶ 10.

Also on May 15, 2014, Sherif applied for his former job. ECF No. 4–9 ¶ 6. Lucken did not send Hornbeck Sherif's application because he knew that Hornbeck had other candidates he was considering. Id. Lucken had been unaware of Sherif's absence or termination when he received his application, which stated that Sherif was employed by UMMC. Id.¹³ On May 16, 2014, Sherif told Hornbeck that he had reapplied for his position; however, Hornbeck told him "there was ‘no point to talk about it.’ " ECF No. 11–2 ¶ 32. On May 23, 2014, UMMC offered the position to a candidate who had applied during the first week the position had been posted; on May 27, 2014, that candidate accepted. ECF No. 4–9 ¶¶ 5–6.

On August 20, 2014, Sherif sued UMMC for FMLA violations. ECF No. 1.¹⁴ On October 27, 2014, UMMC moved to dismiss or for summary judgment. ECF No. 4. On November 25, 2014, Sherif opposed the motion. ECF No. 11. On December 19, 2014, UMMC replied. ECF No. 14.

II. Analysis

A. Legal Standard

UMMC's motion is captioned as a motion to dismiss under Rule 12(b)(6)¹⁵ or, in the alternative, for summary judgment under Rule 56.¹⁶ A motion with this caption implicates the Court's discretion under Rule 12(d)¹⁷of the Federal Rules of Civil Procedure. See Kensington Vol. Fire Dept., Inc. v. Montgomery County, 788 F.Supp.2d 431, 436–37 (D.Md.2011).

Ordinarily, the Court "is not to consider matters outside the pleadings or resolve factual disputes when ruling on a motion to dismiss." Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir.2007). However, under Rule 12(d), the Court, in its discretion, may consider matters outside the pleadings; 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).¹⁸

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).

Sherif has had more than adequate notice that UMMC's motion might be treated as one for summary judgment. The motion's alternative caption and attached materials are themselves sufficient indicia. See Laughlin, 149 F.3d at 260–61. Moreover, Sherif responded to the motion as if it might be treated as one for summary judgment and included his own affidavit and other exhibits. See ECF No. 11–2. Sherif has also had...