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Nance v. Maryland Department of Juvenile Services

United States District Court, District of Maryland, Southern Division

March 16, 2015

BARBARA NANCE, Plaintiff,
v.
MARYLAND DEPARTMENT OF JUVENILE SERVICES, et al., Defendants.

MEMORANDUM OPINION [1]

Paul W. Grimm, United States District Judge.

Plaintiff, an independent contractor working for a state agency, has filed this suit under federal and Maryland law alleging discrimination on the basis of race, national origin, age, and disability when she was denied a position as a state employee on several occasions. Defendants have moved to dismiss on the grounds that, inter alia, Plaintiff did not exhaust her administrative remedies before filing a civil action. Because Plaintiff filed her complaint more than ninety days after receiving a right-to-sue letter from the U.S. Equal Opportunity Employment Commission and more than two years after the last discriminatory action alleged, I find that both her federal and state claims are untimely and grant the motion.

I. BACKGROUND

For purposes of considering Defendant’s Motion, this Court accepts the facts that Plaintiff alleged in her Complaint as true. See Aziz v. Alcolac, 658 F.3d 388, 390 (4th Cir. 2011). Plaintiff Barbara Nance is a sixty-five-year-old registered nurse. Compl. ¶ 6, ECF No. 2. Nance suffers from “lumb[a]r spinal stenosis, diabetes mellitus, coronary artery disease, bilateral knee degenerative joint disease, and peripheral vascular disease. These severe medical conditions . . . impede her ability to walk. . . . For this reason, she can only walk very short distances” with assistance. Id. ¶ 7.

From 1990 to 2011, Nance worked as a registered nurse for Defendant Maryland Department of Juvenile Services (the “Department”), which classified her as an independent contractor. Id. ¶¶ 8, 16–17. During this time, Nance received “satisfactory” evaluations and “excellent recommendations” from some of her colleagues, and never was reprimanded. Id. ¶¶ 9–10. Nance alleges that she should not have been treated as an independent contractor, that she essentially was an employee of the Department, and that she was classified as an independent contractor for the purpose of “depriving her of benefits.” Id. ¶¶ 17–19.

Nance applied for nurse positions within the Department on several occasions: in 2005; in December 2007; in March, October, November, and December 2008; and in May 2010. Id. ¶ 20. Nance was not offered a position, and the only time she was interviewed was in connection with her application in October 2008. Id. ¶¶ 21, 23. Nance did well in the 2008 interview, “and her recorded interview showed that she was a good candidate, as articulated by the interviewer.” Id. ¶ 23. After the October 2008 interview, Nurse Manager Kay Schoo “jokingly asked Ms. Nance and another similarly situated nurse, ‘Why are you old nurses applying for state jobs?’” Id. ¶ 24.

In or around August 2011, a state-employed nurse resigned, and Nance asked Rebecca Pender about the vacated position; “Pender responded that Juvenile had a hiring freeze.” Id. ¶ 22.[2] Also in 2011, Pender saw Nance struggling with her disability “during one of her severe manifestations, and asked Ms. Nance, “Oh my Goodness, how long do you think you gonna continue to work here?” Id. ¶ 26.

Nance never was offered a position as a full-time state employee, and she alleges that “Most or all the nurses hired by the [Department] as regular employees were much younger than Ms. Nance and were of a different color and national origin than Ms. Nance.” Id. ¶ 25. Nance does not allege her race or national origin.

Nance alleges that she “has exhausted all administrative remedies, ” but has not alleged any specific claims advanced in the U.S. Equal Opportunity Employment Commission (“EEOC”) or the Maryland Commission on Civil Rights.

Nance filed her five-count complaint against the Department and Secretary of Juvenile Services Sam J. Abed on September 9, 2013 in the Circuit Court for Prince George’s County, alleging (I) discrimination on the basis of disability in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and Maryland law;[3] (II) age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and Maryland law; (III) national origin discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and Maryland law; (IV) race/color discrimination in violation of Title VII and Maryland law; and (V) race/color discrimination in violation of Title VII and Maryland law, citing also to the Fair Labor Standards Act (“FLSA”). Defendants removed to this Court on April 29, 2014, invoking this Court’s federal question jurisdiction under 28 U.S.C. § 1331. Notice of Removal, ECF No. 1.

On May 6, Defendants filed a Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), Defs.’ Mot., ECF No. 11, with a supporting Memorandum, Defs.’ Mem., ECF No. 11-1. Nance has not responded and the time to do so has passed. Loc. R. 105.2(a). Having reviewed the filings, I find a hearing is not required. Loc. R. 105.6.

II. STANDARD OF REVIEW

A. Rule 12(b)(1) Standard When Jurisdictional Facts Allegedly Are Untrue

A party may move to dismiss a claim pursuant to Fed.R.Civ.P. 12(b)(1), which provides that a party may assert lack of subject matter jurisdiction by motion as a defense to a claim for relief. A Rule 12(b)(1) motion to dismiss may allege that “the jurisdictional allegations in the complaint are not true.” Fontell v. MCGEO UFCW Local 1994, No. AW-09-2526, 2010 WL 3086498, at *3 (D. Md. Aug. 6, 2010); see Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) (same). If the defendant alleges as much, then “the Court may . . . consider matters beyond the allegations in the complaint.” Fontell, 2010 WL 3086498, at *3. The Court “regard[s] the pleadings’ allegations as mere evidence on the issue, ” and its consideration of additional evidence does not “convert[] the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac Ry. v. United ...


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