Carter v. MedStar Health, Inc. et al

Filing 26

MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 7/30/2013. (aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
TENIKA S. CARTER,

:

Plaintiff,

:

v.

:

VNA, INC.,

:

Defendant.

Civil Action No. GLR-12-868

:
MEMORANDUM OPINION

THIS MATTER is before the Court on Defendant VNA, Inc.’s
(“VNA”)

Motion

for

Summary

Judgment

and

Motion

to

Strike

Plaintiff Tenika S. Carter’s Cross-Motion for Summary Judgment.
(ECF Nos. 19, 23).

The procedural challenge, notwithstanding,

the underlying case involves a claim that VNA terminated Ms.
Carter’s

employment,

based

on

her

pregnancy

and

request

for

maternity leave, in violation of Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq. (2012) and
the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et
seq. (2012).
The

issues

necessary.

have

been

fully

briefed

and

See Local Rule 105.6 (D.Md. 2011).

no

hearing

is

For the reasons

that follow, VNA’s Motion for Summary Judgment will be granted
and

Ms.

stricken.

Carter’s

Cross-Motion

for

Summary

Judgment

will

be

I.

BACKGROUND

The following facts are either undisputed or construed in
the light most favorable to Ms. Carter.

Ms. Carter worked full-

time as a registered nurse for VNA, Inc., an entity member of
MedStar Health, Inc. (“MedStar”), from December 7, 2006, until
she was terminated on June 30, 2010.
profit

regional

healthcare

system

MedStar is a not-for-

serving

Maryland

and

the

District of Columbia.
VNA provides in-home healthcare services for patients who
are disabled or living with a chronic condition.
fitting

these

criteria

is

nearing

discharge

When a patient
from

a

MedStar

system hospital, his or her physician may write an order for athome care and refer the patient to VNA.
in

each

MedStar

system

hospital,

VNA maintains offices

including

Good

Samaritan

Hospital (“GSH”), where Ms. Carter worked.
In 2009, due to a drop in its volume of business, VNA
decided to downsize, resulting in a reduction in force (“RIF”).
At that time, VNA had a RIF policy, which provided: “when there
are fewer positions available than there are qualified employees
who

successfully

position,
factors

job

and

in

meet

competencies

eliminations

will

the

following

be

order:

required
based

on

for
the

performance

a

given

following

assessments,

including annual performance evaluations; department seniority;
and company seniority.”

(Def.’s Mot. Summ. J. App. 6, at 3
2

[“RIF

Policy”],

criteria

on

a

ECF

No.

19-7).

Instead

department-specific

basis

of

applying

across

all

of

these
its

hospitals, VNA had an established practice of applying these
criteria on a site-specific basis.
VNA implemented its RIF policy by first identifying which
sites would have eliminations, and then by eliminating employees
at those sites based on the policy.

Ultimately, VNA terminated

thirty employees as part of the 2009 RIF.

After the 2009 RIF,

VNA decided it needed to further downsize via another RIF in
2010.

VNA narrowed its decision to implement the 2010 RIF to

two Baltimore-area hospitals with dropping referral volume, one
of which was GSH.
During the relevant time period, GSH employed Ms. Carter as
a clinical consultant.

In April 2010, Ms. Carter learned she

was pregnant and informed her Human Resources Manager, Corrine
Trancucci, that she wished to take FMLA leave for the pregnancy.
On April 15, 2010, Ms. Trancucci informed Ms. Carter that her
FMLA leave had been approved.
On May 12, 2010, however, Ms. Carter’s supervisor, Shelly
Garfield,

informed

Ms.

Carter

that

her

employment

would

terminate on June 30, 2010, pursuant to a RIF, unless she found
another position at VNA or elsewhere within the MedStar system
prior to that date.
clinical

consultant

VNA explained that it needed to eliminate a
position

from
3

GSH

because

clinical

consultants were solely responsible for handling referrals, the
volume of referrals at GSH were down, and thus GSH could manage
with one less clinical consultant.
Carter

instead

of

Carol

Bevans,

VNA chose to eliminate Ms.
who

worked

part-time

as

a

clinical consultant at GSH and had more seniority within the
system.

At the time of Ms. Carter’s termination, Ms. Bevans was

the only other clinical consultant at GSH.
six

other

clinical

Baltimore-area
Cecilia

consultants

hospitals:

Hawkins,

and

employed

There were, however,
by

VNA

at

other

Patti

Armijo,

Cecilia

Callahan,

Catherine

Stewart

worked

full-time;

Jennifer McCarley and Gina Williams worked part-time.
On March 20, 2012, Ms. Carter commenced this civil action,
claiming that she was terminated based on her pregnancy and
request for maternity leave, in violation of Title VII and the
FMLA.

Following discovery, VNA moved for summary judgment.
II. DISCUSSION

A.

Standard of Review
Under Federal Rule of Civil Procedure 56, the Court must

grant summary judgment if the moving party demonstrates that
there is no genuine issue as to any material fact, and that the
moving

party

is

entitled

to

judgment

as

a

matter

of

law.

Fed.R.Civ.P. 56(a).
In reviewing a motion for summary judgment, the Court views
the facts in a light most favorable to the non-moving party.
4

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

Once

a motion for summary judgment is properly made and supported,
the opposing party has the burden of showing that a genuine
dispute exists.

Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586-87 (1986).

“[T]he mere existence of

some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.”
Anderson, 477 U.S. at 247-48.
A “material fact” is a fact that might affect the outcome
of a party’s case.

Id. at 248; JKC Holding Co. v. Wash. Sports

Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).
fact

is

considered

substantive

law,

and

to

be

“material”

“[o]nly

disputes

is
over

Whether a

determined
facts

by

that

the

might

affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.”

Anderson, 477

U.S. at 248; Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th
Cir. 2001).
A “genuine” issue concerning a “material” fact arises when
the evidence is sufficient to allow a reasonable jury to return
a verdict in the nonmoving party’s favor.
248.

Anderson, 477 U.S. at

Rule 56(c) requires the nonmoving party to go beyond the

pleadings and by its own affidavits, or by the depositions,
answers to interrogatories, and admissions on file, designate
5

specific facts showing that there is a genuine issue for trial.
Celotex

Corp.

v.

Catrett,

477

U.S.

317,

324

(1986).

The

nonmoving party “cannot create a genuine dispute of material
fact

through

mere

speculation

or

compilation

of

inferences.”

Deans v. CSX Transp., Inc., 152 F.3d 326, 331 (4th Cir. 1998)
(quoting

Beale

v.

Hardy,

769

F.2d

213,

214

(4th

Cir.

1985)

(internal quotations omitted)).
B.

Analysis
1.

Pregnancy Discrimination

Ms. Carter cannot survive summary judgment on her Title VII
employment discrimination claim because she has not established
a prima facie case or produced sufficient direct or indirect
evidence that she was terminated because of her pregnancy.
The Pregnancy Discrimination Act (“PDA”) requires employers
to treat pregnant employees “the same for all employment-related
purposes . . . as other persons not so affected but similar in
their

ability

2000e(k).

or

inability

to

work

.

.

.

.”

42

U.S.C.

§

Courts analyze pregnancy discrimination claims in the

same manner as any other Title VII sex discrimination claim.
DeJarnette v. Corning Inc., 133 F.3d 293, 297 (4th Cir. 1998)
(citation

omitted);

F.Supp.2d

657,

661

Holmes
(D.Md.

v.

E.Spire

2001)

Commc’ns,

(citation

Inc.,

omitted).

135
A

plaintiff, therefore, bears the burden of showing that she was a
victim of intentional discrimination.
6

DeJarnette, 133 F.3d at

297.

Additionally, a plaintiff bears the burden of establishing

that

defendants

pregnancy.”

discriminated

against

her

“because

of

her

Id.; Holmes, 135 F.Supp.2d at 661; 42 U.S.C. §§

2000e–2(a)(1)-(2).
There

are

two

methods

discrimination

in

evidence

intentional

of

circumstantial

employment:

evidence

for

(1)

proving

through

direct

discrimination,

under

the

intentional

or

three-step,

or

indirect

(2)

through

burden-shifting

scheme set forth by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802–05 (1973).

Burns v. AAF-McQuay,

Inc., 96 F.3d 728, 731 (4th Cir. 1996).
Under the McDonnell Douglas framework, the plaintiff first
must

establish

a

prima

facie

case

of

discrimination.

McDonnell Douglas Corp., 411 U.S. at 802.

See

Once a plaintiff

establishes a prima facie case of discrimination, the burden of
production

shifts

nondiscriminatory
alleged.

to

the

reason

defendant
for

the

to

present

adverse

a

legitimate,

employment

action

See Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133, 142 (2000) (citing Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 254 (1981)).

If the defendant succeeds

in doing so, that will rebut the presumption of discrimination
raised

by

the

plaintiff's

prima

facie

case.

See

Stokes

v.

Westinghouse Savannah River Co., 206 F.3d 420, 429 (4th Cir.
2000) (citing Burdine, 450 U.S. at 255 n.10).
7

The plaintiff then must “prove by a preponderance of the
evidence that the legitimate reasons offered by the defendant
were

not

its

discrimination.”

true

reasons,

but

were

Burdine, 450 U.S. at 253.

a

pretext

for

To be sure, as the

Supreme Court observed in St. Mary’s Honor Ctr. v. Hicks, “a
reason cannot be proved to be ‘a pretext for discrimination’
unless it is shown both that the reason was false, and that
discrimination was the real reason.”
(emphasis in original).
bears

the

ultimate

intentionally
Applications

In the end, “[t]he plaintiff always

burden

discriminated
&

Serv.

Co.,

509 U.S. 502, 515 (1993)

of

proving

against
80

F.3d

that

her.”
954,

959

the

Evans
(4th

employer
v.

Cir.

Techs.
1996)

(citing Burdine, 450 U.S. at 253).
To establish a prima facie case of discrimination in the
context of a RIF dismissal, a plaintiff must show that:
(1) she is a member of a protected class; (2) she was
selected from a larger group for termination; (3) she
was performing at a level substantially equivalent to
the lowest level of those retained in the group; and
(4) the process of selection produced a residual work
force of persons in the group containing some
unprotected persons who were performing at a level
lower than that at which the plaintiff was performing.
Miller v. Sybase, Inc., No. DKC 2006-1176, 2007 WL 5463518, at
*4 (D.Md. Aug. 8, 2007) (citing Bello v. Bank of Am. Corp., 320
F.Supp.2d 341, 347 (D.Md. 2004)).

8

Ms. Carter does not appear to produce direct or indirect
evidence

of

intentional

discrimination.

Instead,

Ms.

Carter

contends only that she has established a prima facie case under
the McDonnell Douglas burden-shifting framework.
analysis

will

proceed

accordingly.

See

The Court’s

Thompson

v.

Potomac

Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002).
Here, there is no dispute that Ms. Carter has established
the

first

three

discrimination case.

elements

of

a

prima

facie

pregnancy

The parties dispute only whether VNA’s RIF

policy produced a residual work force of persons who were not
pregnant or performing at a level lower than Ms. Carter.
Ms. Carter contends that because the residual work force
contained

six

hospitals,

clinical

who

established.

were

not

consultants

from

other

pregnant,

that

the

The Court disagrees.

Baltimore-area

fourth

prong

is

First, it is undisputed that

VNA’s historical practice, when implementing the RIF policy, was
to

commence

the

winnowing

process

on

a

site-specific

basis.

Only after selecting the site and the position to be eliminated
did VNA apply the RIF policy’s selection criteria.

Under this

company practice, Ms. Carter concedes that she was the least
senior clinical consultant at GSH:
9

Q:

Was it explained to you that the way the
decisions are made is that they decide which
facility was going to be affected and then make
the RIF decision based on who in that particular
facility has the least seniority?

A:

That’s how, yes, I don’t remember who explained
that to me, that is their historical practice,
yes.

Q:

Based on what was described
historical practice, you did
departmental
seniority
at
Hospital, correct?

A:

Based on the historical practice, yes.

to you as the
have the least
Good
Samaritan

(Carter Dep. 162:6-18, Oct. 4, 2011, ECF No. 19-2).
Secondly,

Ms.

Carter’s

contention

that

VNA

was,

nevertheless, duty bound to adhere to the RIF policy’s text is
unpersuasive.
“[t]he

To

Company’s

be

sure,

Executive

the

RIF

Officer

policy
and

the

makes

clear

Director,

that
Human

Resources may change or modify all provisions [of the policy]
without prior notice to employees.”

(RIF Policy at 6, ECF No.

19-7).
Thirdly, although Ms. Carter may disagree with the process
used, VNA’s implementation of its RIF policy does not amount to
evidence of discrimination.

In verity, Ms. Carter does not

disagree with the Court’s assessment:
Q:

Am I correct in understanding that you are not
challenging the decision to eliminate a clinical
consultant position, you’re just claiming it
should have been somebody other than you?

10

A:

It should have been someone other than me, based
on the policy in place at that time, yes.

Q:

But you’re not claiming the decision to eliminate
a
clinical
consultant
position
was
discriminatory, are you?

A:

No, not -- no.

(Carter Dep. 155:2-17).

Moreover, a company’s autonomy in

making employment decisions and implementing its RIF policy
is well established within the Fourth Circuit.1

1

Mereish v. Walker, 359 F.3d 330, 338-39 (4th Cir. 2004)
(“[t]he very nature of a RIF is that some workers must be let
go, and difficult decisions have to be made.”); see Rowe v.
Marley Co., 233 F.3d 825, 831 (4th Cir. 2000) (“[Personnel
decisions are] the kind of business decision[s] that we are
reluctant to second-guess.”); DeJarnette, 133 F.3d at 299
(“[T]his Court ‘does not sit as some kind of super-personnel
department weighing the prudence of employment decisions made by
firms
charged
with
employment
discrimination.’”
(citation
omitted)); Henson v. Liggett Grp., Inc., 61 F.3d 270, 277 (4th
Cir. 1995) (“We have recognized the importance of giving an
employer the latitude and autonomy to make business decisions,
including workplace reorganization . . . .”); Duke v. Uniroyal,
Inc., 928 F.2d 1413, 1417-19 (4th Cir. 1991) (acknowledging that
a business should have the autonomy to decide which employees to
terminate in a reduction-in-force based upon the future needs
and business requirements of the employer); Page v. Bolger, 645
F.2d 227, 230 (4th Cir. 1981) (stating that employers legally
must be able to make employment RIF decisions that disfavor
qualified employees “on the basis of comparative evaluation of
their qualifications with those other applicants.”); see also
Groves v. Cost Planning & Mgmt. Int’l, Inc., 372 F.3d 1008, 1010
(8th Cir. 2004) (stating that in a RIF case an “allegation that
another employee should have been fired instead questions a
reasonable business decision by [the employer], a decision
courts do not second guess.”); Brocklehurst v. PPG Indus., Inc.,
123 F.3d 890, 896 (6th Cir. 1997) (“In a RIF, qualified
employees are going to be discharged.”); Healy v. N.Y. Life Ins.
Co., 860 F.2d 1209, 1220 (3d Cir. 1988) (stating that “the
essence of a RIF is that competent employees who in more
prosperous times would continue and flourish at a company may
11

VNA’s decision, harsh as it may seem to Ms. Carter was not,
as

a

matter

of

law,

discriminatory.

As

the

Fifth

Circuit

observed in Turner v. Tex. Instruments, Inc., 555 F.2d 1251,
1257

(5th

Cir.

1977),

“Title

VII

.

.

.

[does]

not

protect

against unfair business decisions [sic] only against decisions
motivated

by

unlawful

animus.”

(rev’d

on

other

grounds

by

Burdine v. Tex. Dep’t of Cmty. Affairs, 647 F.2d 513 (5th Cir.
1981)).
Assuming,
prima

facie

entitled

to

arguendo,

case

of

summary

that

Ms.

pregnancy
judgment

Carter

could

discrimination,
because

it

has

establish

VNA

still

a
is

articulated

a

legitimate, nondiscriminatory reason for terminating Ms. Carter.
Specifically, Ms. Carter was terminated, along with thirty-one
other VNA employees, as a result of the 2010 RIF after VNA used
its business judgment to identify a site and position to be
eliminated and applied the RIF policy.
True,

Ms.

Carter

does

raise

a

few

alleged

disputes

regarding (1) whether VNA terminated Ms. Carter or her position,
(2)

the

temporal

proximity

between

Ms.

Carter’s

request

for

family leave and her temination, (3) whether VNA decided to fire
Ms. Carter before or after she applied for family leave, (4)
whether Ms. Bevans applied for leave under the FMLA, and (5)
whether Mss. Carter and Bevans are similarly situated employees.

nevertheless have to be fired”).
12

These alleged disputes are of no moment, however, because
Ms.

Carter

reason

does

that

not

VNA

terminate her.

rebut

has

the

legitimate,

proffered

to

non-discriminatory

support

its

decision

to

Said differently, Ms. Carter has not met her

burden of proving both that VNA’s stated reason was false and
that discrimination was the real reason for her termination.
Accordingly, the Court will grant VNA’s Motion on Ms. Carter’s
pregnancy discrimination claim and dispense with analysis of the
parties’ arguments pertaining to mitigation of damages.
2.

FMLA

The

Court

Judgment

on

will

the

likewise

FMLA

grant

retaliation

VNA’s
claim

Motion
because

withdrew the claim during her deposition.
FMLA

claim

was

not

withdrawn,

however,

for

Summary

Ms.

Carter

Even assuming the
Ms.

Carter

has

not

established a prima facie case of retaliation.
Courts
McDonnell
claims.

analyze

Douglas

FMLA

retaliation

burden-shifting

claims

framework

under

they

the

use

for

same
PDA

Yashenko v. Harrah's N.C. Casino Co., 446 F.3d 541,

550-51 (4th Cir. 2006).

The plaintiff “must first make a prima

facie showing that [she] engaged in a protected activity, that
the employer took adverse action against [her], and that the
adverse

action

was

protected activity.”
the

protected

causally

connected

Id. at 551.

activity

and

the
13

to

the

plaintiff's

Temporal proximity between
adverse

employment

decision

“satisfies the less onerous burden of making a prima facie case
of causality.”

Santorocco v. Chesapeake Holding Co., No. AW-08-

3049, 2010 WL 2464972, at *7 (D.Md. June. 10, 2010) (quoting
Blankenship
(W.D.Va.

v.

2001)

Buchanan

Gen.

(internal

Hosp.,

quotations

140

F.Supp.2d

omitted)).

668,

As

672

with

a

pregnancy discrimination claim, once the plaintiff establishes a
prima facie case, the defendant bears the burden of showing a
legitimate, non-discriminatory reason for the adverse employment
action.

Yashenko, 446 F.3d at 551.

Once the defendant meets that burden, the plaintiff must
show that the proffered reason for the adverse employment action
was

pretextual.

Id.

Additionally,

“the

weakness

of

the

employer's explanation, standing alone, is not sufficient [to
show

pretext];

rather,

the

employee

must

produce

affirmative

evidence of discriminatory motive or affirmative evidence that
the

employer's

credence.”

proffered

explanation

is

simply

unworthy

of

Blankenship, 140 F.Supp.2d at 674.

Here, there is no dispute that Ms. Carter has established
the first two elements of a prima facie FMLA retaliation claim.
The parties dispute only whether Ms. Carter’s termination is
causally connected to her request for FMLA leave.

Assuming, as

Ms. Carter asserts, that she applied for FMLA leave before VNA
selected her for termination, the temporal proximity between her
request

for

FMLA

leave

and

her
14

termination

would

ordinarily

satisfy the causality element of a prima facie FMLA retaliation
claim.

Ms. Carter’s withdrawal of her FMLA retaliation claim,

however, militates against this Court finding that a prima facie
case has been made.
During her deposition, Ms. Carter expressed her belief that
she

was

terminated

based

on

her

pregnancy,

rather

than

selected

her

for

request for FMLA leave:
Q:

Why do you
termination?

believe

A:

I believe I was selected for termination because
I was pregnant.

Q:

Is there any other reason that you believe that
you were selected for termination?

A:

No.

(Carter

Dep.

164:9-15).

Ms.

you

were

Carter

repeated

this

assertion

later in the deposition:
Q:

You’re claiming the only
terminated
was
because
correct?

reason that you were
you
were
pregnant,

...
A:
(Carter

I believe that’s true.
Dep.

165:8-13).

To

establish

a

prima

facie

FMLA

retaliation claim, Ms. Carter must establish that VNA terminated
her because she engaged in the protected activity of requesting
FMLA leave, not because she was pregnant.
not merely academic.

To hold otherwise would transform a FMLA

15

This distinction is

retaliation

claim

into

discrimination claim.
pregnancy

the

previously

disposed

of

pregnancy

See DeJarnette, 113 F.3d at 296 (“In a

discrimination

case,

the

plaintiff

thus

bears

the

ultimate burden of establishing that the defendant discriminated
against her ‘because of’ her pregnancy.”).
Assuming, arguendo, that Ms. Carter did not withdraw her
FMLA retaliation claim and that she can establish a prima facie
case,

VNA,

as

discussed

at

length

above,

has

articulated

a

legitimate, non-retaliatory reason for Ms. Carter’s termination.
Furthermore,

several

factors

undermine

any

claim

stated reason for termination was pretextual.

that

VNA’s

Most notably,

Shelley Garfield, Ms. Carter’s supervisor, encouraged Ms. Carter
to

apply

pregnancy.

for

FMLA

(Carter

leave
Dep.

once

she

184:2-11).

learned

of

Ms.

Additionally,

Carter’s

during

her

deposition, Ms. Carter admitted that she had applied for and
taken FMLA leave in the past while working for VNA and was not
subject to any retaliation.

(Carter Dep. 199:14-201:21).

Given Ms. Carter’s ultimate failure to show that VNA’s 2010
RIF was not the real reason for her termination, the Court will
grant

VNA’s

Motion

for

Summary

Judgment

as

to

the

FMLA

retaliation claim and dispense with analysis of the parties’
arguments pertaining to mitigation of damages.

16

3.

Cross-Motion for Summary Judgment

Ms.

Carter’s

Cross-Motion

for

Summary

Judgment

will

be

stricken for failing to satisfy the good cause requirement of
Federal Rule of Civil Procedure 16(b)(4) and for failing to
adhere to this Court’s Scheduling Order and Local Rules.
Federal

Rule

of

Civil

Procedure

16(b)(4)

provides

that

scheduling orders

“may be modified only for good cause with the

judge’s consent.”

Accordingly, after the deadlines provided by

a scheduling order have passed, the good cause standard must be
satisfied

to

justify

leave

to

file

dispositive

motions.

See

Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir.
2008).
“by

The movant can satisfy the good cause requirement only

showing

that,

despite

due

diligence,

it

could

not

have

[filed the dispositive motion] in a reasonably timely manner.”
Holliday v. Holliday, No. 09-cv-01449-AW, 2012 WL 1409527, at *3
(D.Md. Apr. 20, 2012).
cross-motions
stricken.
6617334,

for

Zuffa
at

*3

Absent a showing of good cause, untimely

summary

judgment

v.

Thomas,

(D.Md.

Dec.

No.
18,

are

subject

to

8:11-cv-00673-AW,
2012)

(striking

being

2012

WL

defendant’s

cross-motion for summary judgment based on its failure to show
good cause why its dispositive motion was not timely filed).
Furthermore, the Local Rules provide that:
In a two-party case, if both parties intend to file
summary judgment motions, counsel are to agree among
themselves which party is to file the initial motion.
17

After that motion has been filed, the other party
shall file a cross-motion accompanied by a single
memorandum (both opposing the first party’s motion and
in support of its own cross-motion), the first party
shall then file an opposition/reply, and the second
party may then file a reply.
Local Rule 105.2.c (D.Md. 2011).

Failure to adhere to this

Local Rule also warrants striking a party’s cross-motion for
summary judgment.

See, e.g., McReady v. O’Malley, 804 F.Supp.2d

427, 438 n.5 (D.Md. 2011) (striking plaintiff’s cross-motion for
summary judgment because it was filed in violation of Local Rule
105.2.c.).
On June 18, 2012, this Court issued a Scheduling Order,
which provided that all dispositive pretrial motions were to be
filed by November 30, 2012.

(ECF No. 9).

The Scheduling Order

included two additional instructions: (1) the parties were to
file a Status Report on October 31, 2012, providing, in part,
“[w]hether

any

party

intends

to

file

a

dispositive

pretrial

motion”; and (2) “[i]f more than one party intends to file a
summary judgment motion, the provisions of Local Rule 105.2.c
apply.”

(Id.)

Several

months

later,

on

October

31,

2012,

the

parties

submitted a Joint Status Report and Motion to Extend Time For
Discovery and Dispositive Motions (“Joint Status Report”).
No. 17).

In the Joint Status Report, the parties requested that

the deadline for filing dispositive motions be extended.

18

(ECF

(Id.)

The Joint Status Report also stated that “Defendant anticipates
filing a dispositive pretrial motion after the parties complete
discovery.”
the

Court

motion.

(Id.)
that

At no time did Ms. Carter ever notify VNA or

she

intended

to

file

a

dispositive

pretrial

Accordingly, such language was not included in the

parties’ Joint Status Report.
The

Court

granted

the

parties’

request

to

extend

the

deadline for filing dispositive pretrial motions to January 2,
2013.

(ECF No. 18).

VNA timely filed its Motion for Summary

Judgment on January 2, 2013.

(ECF No. 19).

Thereafter, on

January 11, 2013, the parties filed a Consent Motion to extend
the time for Ms. Carter to file a response to VNA’s Motion for
Summary Judgment.

(ECF No. 20).

Ms. Carter’s counsel again

failed to notify this Court or VNA’s counsel that she intended
to file a dispositive pretrial motion of her own.

The Court

granted the parties’ request to extend the deadline for filing a
response to Defendant’s Motion to February 5, 2013. (ECF No.
21).
Finally,

on

February

5,

2013,

Ms.

Carter

filed

a

Consolidated Opposition to the Defendant’s Motion for Summary
Judgment

and

Cross-Motion

for

Summary

Cross-Motion for Summary Judgment”).

Judgment

(“Plaintiff’s

(ECF No. 22).

The filing

of Plaintiff’s Cross-Motion for Summary Judgment was the first
time VNA learned that Ms. Carter intended to pursue her own
19

dispositive pretrial motion.

In her Motion, Ms. Carter seeks

partial summary judgment based on her assertion that she has
established prima facie cases of pregnancy discrimination and
FMLA retaliation.
Ms. Carter does not make a showing of good cause.

Instead,

she argues that only after VNA filed its Motion for Summary
Judgment did she realize that a cross-motion for partial summary
judgment would be necessary.

This argument is without merit as

it clearly does not support a showing of due diligence on Ms.
Carter’s part.
Secondly,
partial

Ms.

summary

Carter

judgment

argues
is

not

that
truly

her
a

cross-motion

dispositive

for

motion,

since a ruling in her favor would not dispose of the entire
case.

This Court finds such reasoning misguided.

Motions for

partial summary judgment are, of course, subject to requirements
of timeliness.

See Capitol Indemnity Corp. v. The Mountbatten

Surety Co., No. Civ.A. DKC993195, 2000 WL 1832646, at *1 (D.Md.
Nov.

22,

summary

2000)
judgment

(noting
could

that
be

plaintiff’s
subject

to

motion
denial

for
due

partial
to

its

untimeliness).
Accordingly, Ms. Carter’s Cross-Motion for Partial Summary
Judgment shall be stricken.

20

III. CONCLUSION
For the foregoing reasons, this Court will, by separate
order, grant VNA’s Motion for Summary Judgment and Motion to
Strike Ms. Carter’s Cross-Motion for Summary Judgment.
Nos. 19, 23)

Entered this 30th day of July, 2013
/s/
_____________________________
George L. Russell, III
United States District Judge

21

(ECF