United States District Court, D. Maryland
ELLEN LIPTON HOLLANDER, District Judge.
This case presents employment discrimination claims arising out of budget cuts implemented in 2008 by Martin O'Malley, as Governor of the State of Maryland (the "Governor"), with the approval of the Maryland Board of Public Works (the "Board"). Because of a projected revenue shortfall of $432 million for fiscal year 2009 ("FY09"), the Governor and the Board approved approximately $345 million in budget reductions, which included the elimination of more than 830 State jobs. Over sixty of those positions were at the Maryland Transit Administration ("MTA"), a statutorily created unit within the Maryland Department of Transportation ("MDOT"). The position held by plaintiff Helen L. Dale was one of the jobs that fell victim to the budget axe in October 2008. At that time, Dale, an African-American woman, was seventy-five years old. "Amended Complaint, " ECF 31 at ¶ 4.
As a result of her termination, Dale filed suit against the MDOT and the MTA on January 17, 2013. See "Complaint, " ECF 1. Dale claimed violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. §§ 2000e et seq., and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621-634 ("ADEA"), alleging that defendants selected her position for elimination from the State's FY09 Budget because of her race, gender, and age. Id. at 1, 2.
According to Dale, she was one among other "similarly situated African American women in job assignments deliberately calculated to expose the occupants to the jeopardy of budget cuts because of the person's race, gender, age, and disability." ECF 31 at 2. Indeed, two other African-American women whose positions with the MTA were abolished as a result of Statewide budget cuts also filed discrimination claims with this Court. See McCray v. Md. Dep't of Transp., ELH-11-03732, 2013 WL 210186, at *1 (D. Md. Jan 16, 2013) (" McCray I "), aff'd in part, vacated in part, 741 F.3d 480 (4th Cir. 2014); McCray v. Md. Dep't of Transp., ELH-11-03732, 2014 WL 4660793 (D. Md. Sept. 16, 2014) (" McCray II "); McCleary-Evans v. Md. Transp. Auth., ELH-12-01550 (D. Md. May 23, 2012) (ECF 1). The McCray case was reviewed once by the Fourth Circuit, as shown above, and another appeal is pending.
In this case, defendants previously filed a "Motion to Dismiss or in the Alternative, Motion for Summary Judgment." ("SJ Motion, " ECF 10). In support of the SJ Motion, defendants submitted a memorandum of law and exhibits, including affidavits, business records, and documents from Dale's proceedings before the Equal Employment Opportunity Commission ("EEOC"). See ECF 10-1 through ECF 10-14. Plaintiff opposed the motion ("SJ Opposition"), and submitted numerous exhibits, including affidavits, documents from Dale's EEOC proceedings, and documents obtained from defendants under the Maryland Public Information Act. ECF 19, ECF 19-1 through ECF 19-26.
In March 2014, following the decision from the Fourth Circuit in McCray v. Md. Dep't of Transp., 741 F.3d 480 (4th Cir. 2014), Dale amended her Complaint to emphasize actions taken by defendants before the start of the budgetary decision-making process. ECF 31. In particular, she alleged that defendants placed her in a job assignment "deliberately calculated" to expose her "to the jeopardy of the budget cuts." Id. at 2. She also added a claim under the Maryland Fair Employment Practices Act ("MFEPA"), Md. Code (2009), § 20-606(a)(1)(i) of the State Government Article ("S.G."). Id. at 1-2.
Because plaintiff amended her complaint, ECF 31, the SJ Motion was denied as moot. See ECF 32 (Order). Thereafter, as to the Amended Complaint, defendants filed a Motion to Dismiss (ECF 34), pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), along with a supporting memorandum ("Memo, " ECF 34-1) and exhibits drawn from Dale's EEOC proceedings. (Collectively, ECF 34 and 34-1 shall be referred to as the "Motion"). Defendants did not title their Motion as one "in the alternative, summary judgment, " as they had done earlier, nor did they resubmit exhibits that they previously filed.
Defendants argue that this Court lacks subject matter jurisdiction to decide Dale's Title VII claims because she failed to timely file her lawsuit, as required by 42 U.S.C. § 2000e-5(f)(1). ECF 34-1, Memo at 2. In the alternative, they argue that Dale's Title VII claims must be dismissed because "all claims arising from the fiscal year 2009 budget cuts... are barred by legislative immunity, " and plaintiff "failed to exhaust her administrative remedies for any Title VII claims based on alleged acts that occurred before any legislative activity began." Id. Additionally, defendants urge the Court to dismiss Dale's ADEA claims as barred by sovereign immunity, and to dismiss her State claim as time-barred. Id. Plaintiff filed an opposition, in which she referred to previously filed exhibits. ("Opposition, " ECF 45). Defendants have replied. ("Reply, " ECF 46).
In light of the substantial briefing with regard to defendants' earlier SJ Motion, which included duplication of arguments advanced in connection with the pending Motion and submission by the parties of many exhibits, and in light of plaintiff's references in her Opposition to prior-filed exhibits, I notified the parties on November 12, 2014, of my intent to convert the Motion to a motion for summary judgment, pursuant to Fed.R.Civ.P. 12(d). ("Notice, " ECF 47). In the Notice, I invited the parties to oppose the Court's "proposed conversion" and/or to submit additional evidence. In early December, plaintiff submitted three additional declarations, including one from plaintiff's attorney, John Morris, Jr., attesting to plaintiff's need for "further factual exploration in discovery." ECF 50-2 at 7 ("Morris Decl. Supp."); see also ECF 50-1 ("Dale Decl. Supp."); ECF 55-1 ("Brown Decl."). Defendants filed a response to plaintiff's submissions on December 19, 2014. ECF 58.
The Motion has been fully briefed and, as discussed, infra, no further discovery is warranted. Nor is a hearing necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I will construe the ADEA and MFEPA claims under standards applicable to a motion to dismiss, and grant the Motion. With respect to the Title VII claims, I will construe the Motion as one for summary judgment and will award summary judgment to defendants.
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 within Maryland. 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).
Dale was first hired by the MTA in 1990, to serve as Manager of the MTA's Office of Public Relations and Publications. Decl. of Helen L. Dale ¶ 2 ("Dale Decl."), ECF 19-1 (Ex. 1 to SJ Opposition). In 1994, the Secretary of the MDOT removed plaintiff from that position. Id. ¶ 4. Dale challenged her removal as an act of unlawful discrimination. Id. Her discrimination claim "resulted in litigation, " which was resolved in a "non-admission" settlement that included Dale's reinstatement with the MDOT to "a higher position" at the MDOT's Office of Community Affairs. Id. In 2003, the Office of Community Affairs was eliminated, and Dale "was placed in a position created for [her] as Coordinator of Employee Wellness within [the] Maryland Motor Vehicle Administration...." Id. ¶ 10. In 2006, Dale "worked out... a new position within the MTA as Director of System-wide Transit Equity...." Id. ¶ 11.
"Sometime in 2007, " plaintiff was notified that she "would be fired from [her] position at the MTA, that position was to be abolished, and, pending separation, [she] was placed in a non-functioning office." Id. ¶ 12. Dale "remained in this questionable status for several months until early 2008, " when plaintiff's "political friends intervened" to have her "placed in a new position as coordinator of a senior initiatives program." Id. Dale "held this position, " as coordinator of a senior initiatives program, "for not much more than six months when, on or about October 15, 2008, " she "was notified that the same budgetary crisis that had existed the prior year when the MTA had created [her] position now necessitated its abolition." Id. ¶ 14.
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 FY09 Budget were imposed by the Governor and the Board using this third method. See Aff. of Judith Slater, Director of Human Resources for MDOT (June 26, 2013), ¶ 7 ("Slater Aff."), ECF 10-4 (Ex. 2 to SJ Motion). Those cuts were instituted by the Governor and the Board pursuant to SFP § 7-213(a). See Press Release, "Governor O'Malley, Board of Public Works Cut Over $345 Million From FY09 Budget" (Oct. 15, 2008), ECF 10-3 (Ex. 1 to SJ Motion), available at http://www.governor.maryland.gov/ pressreleases/081015.asp. As a result, on October 15, 2008, Dale's position was abolished by operation of law. See Slater Aff. ¶¶ 6-8.
Dale received a written notice of the elimination of her position from MDOT Secretary John Porcari. ECF 10-6 (Attach. 2 to Ex. 2 to SJ Motion). It stated, in relevant part:
TO: Helen L. Dale Maryland Transit Administration
FROM: John D. Porcari, Secretary Maryland Department of Transportation
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.
Dale avers that her name was added to the "hit" list of employees whose positions were to be abolished following a meeting between Slater and "Deputy Secretary Swaim-Staley." ECF 19-1, Dale Decl. ¶¶ 17, 18. Dale adds that she had "a long and negative history of interaction with Mr. Swaim-Staley, relating to both [Dale's] race and prior protected activity under the civil rights laws in addition to [an] incident involving [Swaim-Staley's] African American administrative assistant." Id. ¶ 18.
As indicated, Dale's position was one of about 830 State jobs 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 ECF 10-4, Slater Aff. ¶ 7; see also Transp. § 4-203 ("The [MTA] is entitled to the staff provided in the State budget."). However, of these positions, twenty were actually held by employees on October 15, 2008; the remaining forty-three positions were vacant. ECF 10-4, Slater Aff. ¶¶ 6, 7. A list of "Proposed Position Eliminations, " dated October 8, 2008, submitted by plaintiff (ECF 19-23) and defendants (ECF 10-5), shows basic demographic information for twenty-three persons whose positions were proposed for elimination. The data reflects that twelve of these employees were classified as white, eight as African-American, two as multi-racial, and one did not report a racial classification. ECF 19-23. Fourteen were male and nine were female. Id.
After Dale was "notified that her position was to be abolished for alleged budgetary reasons as of October 28, 2008, on or about the prior day, October 27, 2008, " she retired. Dale Decl. ¶ 16. She claims that she "had no intention [of] taking retirement" prior to that day, "but for the decision of [defendants] to abolish [her] position." Id. Dale later "rescinded" her retirement, id., and took a "lower paying position in about 2010 through the direct intervention of Ron Freeland, Executive Secretary for the Maryland Transportation Authority, an African American man...." Id. ¶ 19.
In her Amended Complaint, Dale alleges that she filed a charge of discrimination with the Maryland Commission on Human Relations "[s]ometime after October 27, 2008." ECF 31 ¶ 14. In support of the Motion, defendants have submitted a copy of Dale's EEOC questionnaire, see ECF 34-3, and a "Charge of Discrimination, " which was signed by Dale and submitted to the EEOC on August 14, 2009. "EEOC Charge, " ECF 34-4 at 1. Plaintiff does not dispute the authenticity of the EEOC Charge. See generally Opposition, ECF 45.
Dale alleges that she received notification of her right to sue "on or about October 19, 2012, or shortly thereafter." ECF 31 ¶ 14. Defendants challenge Dale's alleged date of notification of her right to sue. ECF 34-1 at 5. They have submitted a copy of a letter addressed to Dale from the U.S. Department of Justice, informing her of her right to sue under Title VII, dated October 12, 2012. ("Right to Sue Letter, " ECF 34-5).
Dale does not dispute that her Right to Sue Letter is dated October 12, 2012. See Opposition. Indeed, in response to defendants' SJ Motion, Dale's attorney submitted a Declaration acknowledging that the "notice of right to sue in this case" is dated October 12, 2012. See Decl. of John H. Morris, Jr. ¶¶ 3, 5 ("Morris Decl."), ECF 19-4. However, in that Declaration, Morris also said: "Based upon my independent recollections, as have been informed by [cellular phone] billing records identified as Attachment 2, I did not receive the cover letter from DOJ and the Notice of Right to Sue issued to Plaintiff, care of me, see Exhibits 8 and 9 to Defendant's [SJ] Motion, until Friday, October 19, 2012." Id. ¶ 8. Morris explained that he specifically recalled telephoning plaintiff's husband immediately after receiving the Right to Sue Letter, id. ¶ 6, addressed to Dale in care of Morris, id. ¶ 3, and that a review of his phone records after October 12, 2014, shows that Morris first called plaintiff's husband on October 19, 2012. Id. ¶ 7. Accordingly, Dale's attorney concludes that he received the right to sue letter on October 19, 2014.
As noted, Dale filed her original Complaint on January 17, 2013. See ECF 1. That filing was exactly ninety days after October 19, 2012.
As indicated, the Motion is filed "[p]ursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6)." ECF 34 at 1. In their Motion, defendants suggest, but do not specify, which of their arguments pertain to the two subsections of Rule 12. As discussed below, I will construe defendants' motion to dismiss the ADEA claim under Rule 12(b)(1). Contrary to defendants' assertion, Dale's Title VII claims cannot be reached under Rule 12(b)(1), because the ninety day filing requirement in 42 U.S.C. § 2000e-5(f)(1) is not jurisdictional. And, Dale's Title VII claims cannot be reached under Rule 12(b)(6), unless defendants' Motion, styled as a "Motion to Dismiss, " is converted to one for summary judgment, pursuant to Rule 12(d). As discussed below, with regard to Dale's Title VII claims, I will convert defendants' Motion to one for summary judgment, and consider the Title VII claims pursuant to Fed.R.Civ.P. 56. As a matter of law, Dale's Title VII claims are barred, in part, by legislative immunity, and barred, in part, by failure to timely file claims with the EEOC. Finally, as to the State discrimination claims, I will construe the Motion as one to dismiss, filed under Rule 12(b)(6). Those claims must be dismissed, as it is appears on the face of the Amended Complaint that Dale failed to file them within the State statute of limitations.
Additional facts are included in the Discussion.
I. Standards of Review
Defendants' Motion is premised in part on Fed.R.Civ.P. 12(b)(1). "It is well established that before a federal court can decide the merits of a claim, the claim must invoke the jurisdiction of the court." Miller v. Brown, 462 F.3d 312, 316 (4th Cir. 2006). "[J]urisdiction goes to the very power of the Court to act." Ellenbury v. Spartan Motors Chassis, Inc., 519 F.3d 192, 196 (4th Cir. 2008). Moreover, "[c]ourts have an independent obligation to determine whether subject-matter jurisdiction exists, even when no party challenges it." Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010). Pursuant to Fed.R.Civ.P. 12(h)(3), "the court must dismiss the action" if "at any time" it determines that it lacks subject matter jurisdiction. See Arbaugh v. Y & H Corp., 546 U.S. 500, 506-07 (2006).
A test of subject matter jurisdiction under Rule 12(b)(1) may proceed "in one of two ways": either a facial challenge, asserting that the allegations pleaded in the complaint are insufficient to establish subject matter jurisdiction, or a factual challenge, asserting "that the jurisdictional allegations of the complaint [are] not true, '" or that other facts, outside the four corners of the complaint, preclude the exercise of subject matter jurisdiction. Kerns v. United States, 585 F.3d ...