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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

FRANCIS C. CARBAUGH,

) ) Plaintiff, ) ) v. ) ) PANGBORN CORPORATION, ) ) Defendant. ) ______________________________)

Civ. No. JFM-00-2719

MEMORANDUM Plaintiff Francis C. Carbaugh has brought claims for discriminatory discharge and retaliation under the Americans with Disabilities Act ("ADA"). Defendant Pangborn Corporation ("Pangborn") has filed a Motion to Dismiss or for Summary Judgment. Carbaugh has filed a Motion for Continuance Pursuant to Fed. R. Civ. P. 56(f) as well as an opposition to Pangborn's motion. Discovery has not yet been completed. Pangborn's Motion to Dismiss will be denied, Carbaugh's Motion for a Continuance will be granted, and Pangborn's Motion for Summary Judgment will be denied without prejudice to being renewed at a later stage in these proceedings.1 I. Carbaugh worked as a production supervisor in Pangborn's manufacturing department until his

Carbaugh has also filed a Motion to File a Surreply. However, Carbaugh has failed to show that Pangborn raised new, relevant arguments in its reply. Therefore that motion will be denied. Even if that motion were granted, the arguments in Carbaugh's Surreply, which was filed with the motion, would not change this Memorandum. 1

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termination on February 4, 1999. In July 1998, Carbaugh had surgery on his right knee and took a medical leave of absence. Carbuagh's job entailed walking to different parts of Pangborn's facility in order to supervise his employees. Carbaugh returned to work on December 7, 1998. After Carbaugh's return, his right knee was impaired. According to Carbaugh, at the time of his termination, he could not kneel, he could not walk more than one hundred feet, he could not stand for more than ten to fifteen minutes, and, if he stood or walked too long, his leg would go numb. Carbaugh requested to use a motorized scooter at work. At first, Pangborn denied Carbaugh's request because it was concerned about whether a scooter could be safely used in close proximity to the machinery at Pangborn's facility. Pangborn did modify Carbaugh's duties to allow him to avoid walking long distances on concrete floors. In January, Carbaugh filed a charge of discrimination with the Maryland Commission on Human Relations. After the charge was filed, Carbaugh met with Pangborn, and Pangborn agreed to let Carbaugh use a scooter if he purchased it. On February 4, 1999, Pangborn announced a significant reduction in force. Carbaugh and 15 other salaried employees were laid off. Carbaugh contends that he was terminated because of his disability in violation of the ADA. In the alternative, he contends that he was terminated in retaliation for his filing of a charge of discrimination. II. Carbaugh has moved under Fed. R. Civ. P. 56(f) for a continuance of Pangborn's Motion to Dismiss or for Summary Judgment. Under Fed. R. Civ. P. 56(f), summary judgment should not be granted until after the party opposing summary judgment has had an opportunity to complete relevant discovery. In order for a Rule 56(f) continuance to be granted, the moving party must supply an 2

affidavit stating what discovery is needed in order to prepare the party's case. See Strag v. Board of Trustees, 55 F.3d 943, 953-54 (4th Cir. 1995). Pangborn has moved for summary judgment on Carbaugh's claims for discrimination and retaliation under the ADA. For Carbaugh's discrimination claim, he must show: (1) he is disabled; (2) he was qualified to perform the essential functions of his position with reasonable accommodation; (3) he was terminated under circumstances giving rise to the inference that his termination was because of his disability. See, e.g., Halperin v. Abacus Tech. Corp., 128 F.3d 191, 197 (4th Cir. 1997). For his retaliation claim, he must show: (1) he engaged in a protected activity; (2) Pangborn terminated him; (3) and a causal connection exists between the protected activity and the termination. See Carter v. Ball, 33 F.3d 450, 460 (4th Cir. 1994). Carbaugh has submitted an affidavit describing the discovery he needs in order to prove these elements. The facts needed for the second and third elements of Carbaugh's discrimination claim and the third element of Carbaugh's retaliation claim concern Carbaugh's termination. Specifically, Carbaugh needs discovery relating to Pangborn's reasons for his termination. Pangborn has asserted that Carbaugh was terminated in connection with a significant reduction in force. Carbaugh has the right to test Pangborn's reasons for his inclusion in the reduction in force, including when Pangborn decided to terminate Carbaugh and Carbaugh's work performance as compared to other employees. Carbaugh is also entitled to a Rule 56(f) continuance related to the first element of his discrimination claim, which concerns whether he is disabled. Pangborn argues that it does not have Carbaugh's medical records and that Carbaugh does not need subpoena power in order to get his medical records from the hospital. However, these arguments are besides the point. Carbaugh's 3

affidavit states that he needs more time to acquire medical records and depose an expert witness concerning Carbaugh's disability. Rule 56(f) states that a continuance should be granted in order to "permit affidavits to be obtained or depositions to be taken or discovery to be had." Rule 56(f) continuances are not limited to situations where a party needs discovery from another party. Pangborn argues that Carbaugh's affidavit is insufficient because it was signed by Carbaugh's lawyer, and not by Carbaugh himself. Neither the case cited by Pangborn, Bryant v. O'Connor, nor Rule 56(f) require that the affidavit be signed by the party and not the party's lawyer. See Bryant, 671 F. Supp. 1279, 1282-83 (D. Kan. 1986). As Carbaugh points out, requiring a party, as opposed to the party's lawyer, to sign the affidavit does not make sense given that the affidavit must present legal arguments about the party's need for discovery. In all likelihood, only the party's lawyer will have the personal knowledge required to sign the affidavit. Pangborn also argues that summary judgment should be granted because of allegedly contradictory statements made by Carbaugh. I will consider the effect of these statements when Pangborn renews its motion for summary judgment after the completion of discovery. However, I note that Carbaugh's statements are not necessarily contradictory. For example, Pangborn argues that because Carbaugh stated that he was able to perform his job he is precluded from arguing that he was disabled. (Reply at 2; see also Carbaugh Aff. at

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