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McCray v. Maryland Department of Transportation

United States District Court, D. Maryland

September 16, 2014

MARIE M. McCRAY, Plaintiff,



This case comes to the Court on remand from the United States Court of Appeals for the Fourth Circuit. McCray v. Md. Dep't of Transp., 741 F.3d 480 (4th Cir. 2014). The case arises from a suit filed by Marie M. McCray in December 2011 against her former employers, the Maryland Department of Transportation ("MDOT") and the Maryland Transit Administration ("MTA"), a unit within MDOT. McCray alleged that defendants selected her position for elimination from the State's fiscal year 2009 Budget because of her race, gender, age, and disability. "Original Complaint, " ECF 1. McCray, who is African-American, was a 64-year-old diabetic when her employment was terminated in October 2008. Memorandum Opinion, ECF 18 at 1; see also McCray v. Md. Dep't of Transp ., Civ. No. ELH-11-3732, 2013 WL 210186, at *1 (D. Md. Jan 16, 2013). Plaintiff's position was one of about 830 State jobs eliminated in 2008 by operation of law, in connection with substantial budget cuts implemented by Governor Martin O'Malley and the Maryland Board of Public Works (the "Board").[1] McCray, 2013 WL 210186 at *1.

In her suit, McCray claimed violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. §§ 2000e et seq.; Title I of the Americans with Disabilities Act of 1990 ("ADA"), as amended, 42 U.S.C. §§ 12101-12113; and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621-634 ("ADEA"). ECF 1 at 1-2, 8. Prior to discovery, this Court granted summary judgment in favor of defendants, on the ground that decisions implementing the budget cuts, including the one eliminating McCray's job, were protected legislative conduct, and thus suit was barred by legislative immunity. Memorandum Opinion, ECF 18 at 17, 25; see McCray, 2013 WL 210186, at *15, *17.

On appeal, the Fourth Circuit held that McCray's ADA and ADEA claims were barred by sovereign immunity. McCray, 741 F.3d at 481. Moreover, the Fourth Circuit agreed that "enacting a budget is a legislative act.'" Id. at 485 (citation omitted). And, it also ruled that this Court's "conclusion" barring the Title VII claim on the basis of legislative immunity was "correct insofar as it shields the MTA and MDOT from lawsuit based on the counsel they gave executive officials in Maryland who carried out the budget cuts." Id. at 485. But, the Court was of the view that "the complaint allege[d] discriminatory conduct that occurred before any legislative activity." Id. at 481; see also id. at 485. In the Fourth Circuit's view, dismissal was premature under Fed.R.Civ.P. 56(d), because McCray had not been afforded "the opportunity to discover evidence necessary to her claims...." Id. Specifically, the Court pointed to McCray's allegations that "her supervisor at the MTA stripped her of responsibilities in the years leading up to budget cuts" and "refused to give McCray additional responsibilities, even after she asked for more work." Id. at 486. Therefore, the Court vacated and remanded for consideration of claims related to actions that occurred "well before any legislative activity." Id. at 484.

These pre-budget-cut allegations are now the focus of McCray's amended claims. See "Amended Complaint, " ECF 36. In her Amended Complaint, filed March 2013, McCray also changed her ADA claim from Title I of the ADA, codified at 42 U.S.C. §§ 12101-12113, to Title II of the ADA, codified at 42 U.S.C. §§ 12131-12133. In addition, she added claims for violation of Section 504 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), as amended, 29 U.S.C. §§ 791-794, and the Maryland Fair Employment Practices Act ("MFEPA"), Md. Code (2009), § 20-606(a)(1)(i) of the State Government Article ("S.G."), based on the same alleged discriminatory conduct. Compare ECF 1 at 1-2, 8 (claims), ECF 1 at ¶¶ 7-23 (factual allegations) with ECF 36 at 1-2 (claims), ECF 36 at ¶¶ 7-23 (identical factual allegations).

Defendants have responded with a "Motion to Dismiss the Amended Complaint" (ECF 37) (together with its supporting memorandum, ECF 37-1, "Motion"), pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). ECF 37 at 1. They contend that McCray failed to exhaust administrative remedies with respect to the Title VII claim and that her claims under the Rehabilitation Act and MFEPA are barred by limitations. In addition, they assert that the ADA and ADEA claims are barred for the reasons previously stated by the Fourth Circuit. ECF 37 at 2, 7. Plaintiff has filed an opposition ("Opposition, " ECF 48), to which defendants have replied ("Reply, " ECF 49).

The Motion has been fully briefed, and no hearing is necessary to resolve it. See Local Rule 105.6. For the reasons that follow, I will grant the Motion.

Factual Background[2]

The MDOT is a "principal department" of the Maryland State government. Md. Code (2008 Repl. Vol, 2012 Supp.), § 2-101 of the Transportation Article ("Transp."). The MTA is one of nine statutorily created units, or "modal administrations, " within the MDOT, see Transp. § 2-107(a)(3), and is responsible for administering the mass transit system in the Baltimore metropolitan area and other parts of the State of Maryland. ECF 36 ¶ 4. The Secretary of the MDOT, who is appointed by the Governor with the advice and consent of the State Senate, Transp. § 2-102(a), bears statutory responsibility for the budgets of the MDOT and each of its modal administrations. See Transp. § 2-103(a).

McCray worked at the MTA from January 1971 until her position was eliminated in October 2008. ECF 36 ¶¶ 7, 21. During the relevant time period, McCray was assigned to the MTA Office of Service Development, id. ¶ 14, and was responsible for preparing monthly and annual rider usage reports. Id. ¶¶ 8-9. After plaintiff was diagnosed with diabetes in 1995, she began storing medication for her condition at work and administering insulin shots at her office. Id. ¶ 10. She alleges that prior to 2007 she did not encounter any difficulties in performing her job as a result of her diabetes. Id. ¶ 11. However, on June 14, 2007, she fainted at the office due to low blood sugar, and was transported to the hospital. Id. ¶ 12. A week later, McCray was cleared by her doctors and returned to work. Id. ¶ 13. McCray alleges that, upon returning to the office, Michael Deets, then the Deputy Director of Service Development, questioned her repeatedly about her health. Id. ¶¶ 14-15. Deets, along with Carla Wescott, a human resources official, insisted that McCray submit to further medical examination by "the State's medical officers at Concerta, " but McCray refused in the absence of a written request. Id. ¶ 15. After Deets and Wescott procured a written request, McCray underwent an examination by Concerta, and she was cleared to resume work. Id. ¶ 17. Nevertheless, Deets continued to "plague" McCray "with questions about whether she was fit to resume her duties." Id. ¶ 18. McCray maintains that Deets was "seeking to justify removing [her] from her position." Id.

In early 2008, Deets reassigned McCray's responsibilities for rider reports to a consultant. Id. ¶ 19. According to McCray, she had no other significant job responsibilities, and was unable to obtain additional work, even though she "repeatedly sought additional work from her supervisor" and "[d]espite the fact that other staff" in the unit "appeared overwhelmed with work." Id. ¶ 20.

Under Maryland Law, the General Assembly's appropriation for a job position with the State may be abolished in one of three ways: (1) the Governor may omit the position from the annual budget bill presented to the State legislature; (2) the General Assembly may strike an appropriation included in the budget bill presented by the Governor; or (3) the Governor, with approval of the Board, may reduce an appropriation previously included in the budget bill, as enacted. See 76 Md. Op. Atty. Gen. 330, 1991 WL 626528, at *1 (Sept. 5, 1991); Judy v. Schaefer, 331 Md. 239, 258-61, 627 A.2d 1039, 1049-50 (1993) (discussing Governor's authority to strike budget appropriations).

The third method identified above derives from Section 7-213(a) of the State Finance and Procurement Article ("SFP") of the Maryland Code (2009 Repl. Vol.). Under that section, the Governor may, "with the approval of the Board of Public Works, ... reduce, by not more than 25%, any appropriation: (1) that the Governor considers unnecessary; or (2) that is subject to budgetary reductions required under the budget bill as approved by the General Assembly." Id. The position is then lost by operation of law, just as it would be if the action had been taken in the budget bill by the Governor and the General Assembly. 76 Md. Op. Atty. Gen. 330, 1991 WL 626528 at *5.

On October 15, 2008, cuts to the fiscal year 2009 Budget were imposed by the Governor and the Board using this third method. See Slater Aff. ¶ 7, Ex. 2 (ECF 7-4) to Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment ("First Motion, " ECF 7). Those cuts were instituted by the Governor and the Board pursuant to SFP § 7-213(a). See Press Release, Governor OMalley, Board of Public Works Cut Over $345 Million From FY09 Budget (Oct. 15, 2008), Ex. 1 (ECF 7-3) to defendants' First Motion, available at

As a result, on October 15, 2008, McCray's position was abolished by operation of law. See Slater Aff. ¶¶ 6-8 (ECF 7-4). On that same day, Deets and MDOT Human Resources Director Judith Slater informed McCray that her position had been abolished as a result of budget cuts, and that her last day as a MTA employee would be October 30, 2008. Amended Complaint, ECF 36 ¶ 21.

At the meeting with Deets and Slater, McCray received a Memorandum from John D. Porcari, Secretary of MDOT. Porcari Memorandum, Attach. 2 to Ex. 2 (ECF 7-6) to defendants' First Motion. It said, in part:

TO: Marie M. McCray
Maryland Transit Administration
FROM: John D. Porcari, Secretary Maryland Department of Transportation
October 15, 2008
RE: Position Abolition
At its meeting earlier today, the Board of Public Works approved the elimination of the appropriation for your position. As a result, your position will be abolished on October 30, 2008. Under paragraph 2.3 of the Transportation Service Human Resources System ("TSHRS") Policy 7-H layoff, this action is not considered a layoff.

As noted, McCray's position was one of about 830 State jobs[3] abolished by budget cuts in October 2008. Of the 830 State jobs that were abolished due to the FY09 budget cuts, sixty-three positions were eliminated at the MTA. See Slater Aff. ¶ 7, ECF 7-4; see also Transp. § 4-203 ("The [MTA] is entitled to the staff provided in the State budget."). Of these positions, approximately twenty were actually held by employees at the time; the remaining forty-three positions were unfilled. Slater Aff. ¶ 7, ECF 7-4. Data proffered by defendants, both in connection with charges of discrimination filed by McCray with the EEOC, see ECF 16-8 (EEOC report listing eliminated positions), and in support of defendants' First Motion, see ECF 7-5 (list of position eliminations proposed by MTA), reflected that, of the twenty MTA employees who lost ...

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