United States District Court, D. Maryland
ELLEN LIPTON HOLLANDER, District Judge.
In May 2012, plaintiff Dawnn McCleary-Evans filed suit against her former employers, the Maryland Department of Transportation ("MDOT") and the Maryland Transit Administration ("MTA"), a unit within MDOT, alleging employment discrimination on the basis of race, sex, retaliation, age, and disability. ECF 1 ("Complaint"). Plaintiff's claims are rooted in the elimination of her job position during the State of Maryland's budget cuts for the 2010 fiscal year. Plaintiff 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, 12 ¶ 38.
In plaintiff's Amended Complaint, filed in March 2014 (ECF 31, "Amended Complaint"), plaintiff changed the basis of her ADA claim from Title I to Title II of the ADA, codified at 42 U.S.C. §§ 12131-12133. ECF 31 at 1-2. She also added claims under Section 504 of the Rehabilitation Act of 1973 ("Rehab. Act"), as amended, 29 U.S.C. §§ 791-794, and the Maryland Fair Employment Practices Act, Md. Code (2009), § 20-606(a)(1)(i) of the State Government Article, based on the same alleged discriminatory conduct.
The case was stayed during the pendency of the appeal of a related action, McCray v. Maryland Dep't of Transp., ELH-11-03732. See ECF 12, 13, 19, 20, 23 (Order entered 6/24/13). The Fourth Circuit decided McCray on January 30, 2014. Thereafter, defendant filed a Motion to Dismiss the Amended Complaint. ECF 33 ("Motion"). Plaintiff filed an Opposition (ECF 44), with exhibits (ECF 44-1 to ECF 44-3). Defendants replied. ECF 45.
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 convert the Motion, in part, to a motion for summary judgment. Pursuant to Fed.R.Civ.P. 12(b)(1), I will dismiss for lack of subject matter jurisdiction plaintiff's ADEA claims and her Title VII claim, for discriminatory transfer, that relates to actions taken before legislative activity began. Pursuant to Fed.R.Civ.P. 56, I will deny plaintiff's discriminatory discharge claim under Title VII, the ADA, and the Rehab Act, as barred by legislative immunity, and deny plaintiff's remaining claims under the MFEPA, ADA, and the Rehab Act as time barred. Therefore, I will grant the relief requested in the Motion.
I. Procedural Background
McCleary-Evans's case is related to three others filed in this District against the same defendants. See McCray v. Md. Dep't of Transp., ELH-11-03732; Dale v. Md. Dep't of Transp., ELH-13-00191; Walker-Pittman v. Md. Dep't of Transp., CCB-14-00202. All of the plaintiffs lost their jobs when Martin O'Malley, then the Governor of Maryland, with the approval of the Maryland Board of Public Works (the "Board"),  abolished plaintiffs' positions as part of State-wide budget cuts for fiscal year 2009 (McCray and Dale) and fiscal year 2010 (McCleary-Evans and Walker-Pittman). In each case, the plaintiff is an African-American woman, over the age of forty. Three out of the four cases also allege disabilities. The plaintiffs are all represented by the same attorney.
The three other cases have already been decided at the district court level, each in favor of the defendants, and one, McCray, has been considered by the Fourth Circuit once, and by this Court a second time. See McCray, 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, 2014 WL 4660793 (D. Md. Sept. 16, 2014) (" McCray II "); Dale, 2015 WL 221628 (D. Md. Jan. 15, 2015); Walker-Pittman, 2015 WL 419806 (D. Md. Jan. 29, 2015). McCray II, Dale, and Walker-Pittman are now pending on appeal before the Fourth Circuit. See McCray, ELH-11-03732 (ECF 52) (Notice of Appeal); Dale, ELH-13-00191 (ECF 61) (same); Walker-Pittman, CCB-14-00202 (ECF 18) (same).
In each case, the district court held that defendants are entitled to absolute legislative immunity with respect to each plaintiff's claim for discriminatory discharge. See, e.g., McCray, 741 F.3d at 486; Walker-Pittman, 2015 WL 419806, at *3. However, in each case, including this one, the plaintiff also alleged (directly or indirectly) that she was transferred to a new position or given significantly different job duties, at defendants' behest, about a year or before the abolition of the position she held, and thus was not well positioned to withstand the budget cuts. See ECF 31 ¶ 27; McCray, 741 F.3d at 486; Dale, 2015 WL 221628, at *3; Walker-Pittman, 2015 WL 419806, at *4.
On appeal from my decision in McCray I, the Fourth Circuit determined in McCray, 741 F.3d at 486, that defendants' decision to change McCray's job duties before "any legislative activity began" was a discrete adverse employment action and was not subject to defendants' legislative immunity defense. It stated, id. (citations omitted):
Had the legislature simply terminated McCray's position, that action would be shielded by legislative immunity. Similarly, if McCray's supervisors advised the legislature to terminate her position because of discriminatory animus, this too would be protected by legislative immunity. In this case, however, McCray's allegation is that she was subject to discriminatory adverse employment actions that made her position vulnerable to the budget cuts that eventually came, and she alleges that these actions were taken before any legislative activity. Put another way, the basis of McCray's lawsuit is not the financial storm that rocked the state and forced Maryland's government to scale back its budget. Rather, her claim is that the MTA and MDOT gave her a lightning rod to hold and sent her to the roof.
Accordingly, the Fourth Circuit affirmed in part and vacated in part my decision in McCray I. It held that defendants were entitled to legislative immunity with respect to McCray's claim for discriminatory discharge, but not as to an allegation that defendants were liable for her supervisor's discriminatory decision, before legislative activity began, to significantly change her job duties; the change in job duties allegedly rendered her job vulnerable to elimination when budget cuts were implemented. Id. The Court also concluded that McCray's motion under Fed.R.Civ.P. 56(d), seeking additional discovery in support of her opposition to the S.J. Motion, "should have been granted because" her "lawsuit... aimed at discrimination that occurred before any legislative activity began." Id. at 487. In addition, the Court held that McCray's ADEA and ADA Title I claims were barred by sovereign immunity. Id. at 483.
On remand, in McCray II, I dismissed McCray's remaining, pre-legislative activity claim because she failed to exhaust administrative remedies in her proceeding before the Equal Employment Opportunity Commission ("EEOC"). McCray II, 2014 WL 4660793, at *10-11. I also dismissed her re-alleged ADEA claim, as barred by sovereign immunity, and her ADA Title II, Rehab Act, and MFEPA claims, as barred by statutes of limitations. Id. at *8, *14-16. Similarly, in Dale, 2015 WL 221628, at *10-11, I held that Dale's ADEA claim was barred by sovereign immunity; that defendants were entitled to legislative immunity with respect to Dale's Title VII discriminatory discharge claim, id. at *17; that she had not timely filed EEOC charges as to any remaining Title VII claims, id. at *17-19; and that her MFEPA claims were also time barred. Id. at *19-20.
And, in Walker-Pittman, 2015 WL 419806, Judge Blake dismissed Walker-Pittman's claims for almost the same reasons. Judge Blake dismissed plaintiff's ADEA and ADA Title I claims as barred by sovereign immunity, id. at *2; dismissed her Title VII discharge claim as barred by legislative immunity, id. at *4; dismissed any remaining Title VII claims for failure to timely file them before the EEOC, id. at *7, as well as failure to state a claim, id. at *8-9; and dismissed her ADA Title II claim as time barred. Id. at *10.
II. Factual Background
A. Plaintiff's Allegations of Discrimination
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 31 ¶ 5. 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).
Plaintiff describes herself as an "African American female." E.g., ECF 1 ¶ 4. "At the time relevant to the allegations, " she was fifty years old. Id. As of 2008, she had "suffered from degenerative arthritis of the knee" for more than ten years. Decl. of Dawnn McCleary-Evans ("McCleary-Evans Decl."), ECF 14-1 ¶ 18. Her condition "was partially disabling, limiting [her] capacity to perform certain physical tasks." Id.
McCleary-Evans began working for defendants in July 2006, as an "Administrative IV, serving as Chief of Environmental Documents in the Office of Planning" ("Office"). Id. ¶ 2. From July 2006 until October 8, 2008, McCleary-Evans "worked with a staff of in-house transportation planners and contract consultants as Chief of Environmental Documents to oversee the State's planning and development of federal documents in the area of environmental regulatory compliance...." Id. ¶ 3.
Plaintiff avers that when she was hired in 2006 she "was the first African American female to hold a chief's position in the field of environmental regulation within the MTA's Office of Planning." Id. ¶ 4. She succeeded "a White male, John Newton, who had left the position for work in the private sector." Id. She claims that she had more experience in the field and better credentials than Newton. Id.
Newton returned to the Office of Planning in the Fall of 2006, "after an absence of just a few months in private industry... seeking to continue in his prior position." Id. ¶ 5. The Office re-hired him as "another environmental chief within the Office of Planning." Id. McCleary-Evans and Newton then "worked together as peers." Id. However, plaintiff asserts that Newton immediately "assumed a domineering stance in his interpersonal dealings" with her, "as if he were then [her] supervisor." Id. ¶ 6. Some months later, Newton became McCleary-Evans's direct supervisor: "In or about April 2007, " a "change of gubernatorial administrations from the administration of Governor Robert Ehrlich to that of Governor Martin O'Malley resulted in managerial changes within the Office of Planning." Id. ¶ 7. "At some point after April 2007, " Newton was promoted to serve as "Manager of Environmental Planning, " in an acting capacity. Id. ¶ 8. In this position, Newton served as McCleary-Evans's direct supervisor. Id.
McCleary-Evans maintains that "[t]hroughout [Newton's] return to the Office of Planning, " Newton subjected her "to unprofessional and personally abusive treatment." Id. ¶ 9. On April 30, 2007, plaintiff submitted a memorandum detailing her concerns to Diane Ratcliff, a white female, id. ¶ 3, and Director of the Office. Id. ¶ 7. See also ECF 14-2 (Memo of Apr. 2007). She stated, ECF 14-2 at 1 (emphasis in original):
Diane, I expressed to you my concerns about having to work with John Newton. In previous work encounters with him, he has been curt, unprofessional and often times down right rude. One example of this kind of behavior occurred when you asked me to get some information from him about a project I was working on. In almost every instance that I had to speak with him about a work related subject, he has exhibited, in my opinion inappropriate behavior.
Also, when he has to seek information from me, he treats me in a non-professional manner. For example, when he came to me about the quarterly updates. When I wasn't forthcoming with what he wanted to hear, he abruptly turned and walked out. I have only cited a few examples of this kind of behavior on his part, there are others.
All of this negativity makes the working environment very tense. I feel that his reactions are due to me being an African -American as well as a female. I write to you because I want to make you aware of this situation as a matter of official record.
"On or about October 15, 2007, having received no response to her" April 2007 memorandum, McCleary-Evans sent a "follow-up memorandum" to Ratcliff, reiterating her concerns with Newton. McCleary-Evans Decl., ECF 14-1 ¶ 10; see also ECF 14-3 (Memo of Oct. 2007). She informed Ratcliff that she "intend[ed] to go to the Office of Fair Practice' for advice concerning the continued negative treatment" she felt she was receiving from Newton. ECF 14-3 at 1. She added that Newton's "behavior towards [her] ha[d] been even more pronounced" than when she wrote her last memorandum, and that "he ha[d] been irascible and rude towards [her] concerning the files (as one example)...." Id. Plaintiff did then consult with defendants' internal Office of Fair Practice. McCleary-Evans Decl., ECF 14-1 ¶¶ 11-12. Soon after, plaintiff received a written response from Ratcliff with respect to plaintiff's memos of April and October 2007. Id. ¶ 13. Ratcliff "encouraged [plaintiff] to meet with Mr. Newton and work out a resolution to [plaintiff's] expressed concerns." Id.
Despite three meetings intended to resolve the issue, ECF 14-1 ¶¶ 14, 17, the tension between McCleary-Evans and Newton in the workplace continued until October 2008, when plaintiff was transferred to a new position, in a different office. See id. ¶¶ 14-24. McCleary-Evans points to an incident involving plaintiff, Newton, and a contractor, which occurred on July 28, 2008. Id. ¶ 19. Plaintiff was scheduled to go on medical leave starting the next day, July 29, 2008, for knee surgery. Id. ¶ 18. She describes the incident as follows, id. ¶ 19:
19. On or about July 28, 2008, I met with a contract consultant assigned to the Office of Planning who was then working with me. This contract consultant is a White female. I recall her name only as Megan. During the course of my meeting with Megan, Mr. Newton rudely interrupted us to interject his unhappiness that the projects to which I had been assigned would be left for him to handle on his own during the period that I would be out on leave for my scheduled knee surgery. Mr. Newton then became belligerent, screaming not only in my face but in Megan's face. He bullied both of us until we were compelled to leave him, walking away, Megan in tears, to lodge complaints with Ms. Ratcliff about his behavior. Ms. Ratcliff again took no action either to acknowledge or address the complaints lodged either by me or the female contract consultant.
According to McCleary-Evans, as a result of the incident, she experienced "asthmatic problems" that required her to reschedule her knee surgery, and to delay her medical leave. Id. ¶¶ 20, 28. She also learned that the Office terminated the contract of "Megan, the White female consultant" "[s]hortly following" the incident. Id. ¶ 21.
About seven weeks later, McCleary-Evans was required to attend a meeting with Anthony Brown, "Deputy Administrator" at the MTA, in which she was told that she would be transferred to a new position in a different office within the MTA. Id. ¶ 24. She describes the meeting, and her interpretation of the decision, as follows, id. ¶¶ 24-26:
24. On or about September 19, 2008, ... I met with Mr. Brown. He then told me that my skills were needed in the Office of Safety, Quality Assurance, and Risk Management ("Office of Safety") to oversee new environmental compliance issues presented by a recent suit by the Federal Environmental Protection Agency. He explained to me that I was to be transferred to the Office of Safety to perform Environmental Analyst IV duties. Mr. Brown explained that the transfer was not to be treated as a demotion, as I would retain my Administrative IV PIN and receive no change in pay. My new duties would be assumed effective October 8, 2008. My transfer was handled in such a manner that the PIN for my position, even as I fulfilled duties in the Office of Safety, remained in the Office of Planning.
25. Although he never mentioned Mr. Newton or my complaints regarding his treatment of me and his treatment of the contract consultant, Mr. Brown's transfer of me to the Office of Saftey took place within a short time of the incident, and I am aware of no other circumstance taking place more proximate to the transfer as would account for the decision but to get me away from Mr. Newton, not to address my complaints, but rather to protect and accommodate Mr. Newton's desire not to work with me.
McCleary-Evans adds that Brown transferred her to a position that required her to engage in activities she was "restricted from performing... by doctor's orders, " such as driving "strenuous distances, walk[ing] in dangerous locations, and navigat[ing] hills and culverts with an arthritic knee." ECF 14-1 ¶ 26. According to plaintiff, he did so "[d]espite his awareness of" her degenerative arthritis of the knee and "its disabling impact upon" her. Id. She informed him of her condition in the meeting. Id. Plaintiff does not say when she learned her new position would require her to engage in these restricted activities. Id. Nor does plaintiff state whether she objected to the transfer, during the meeting or at any time afterwards. E.g., id.; ECF 1 ¶¶ 27-30.
In plaintiff's second declaration, filed in May 2014, after the Fourth Circuit's McCray decision, McCleary-Evans describes her reaction to the transfer as follows, McCleary-Evans Second Declaration, ECF 44-1 ¶ 7:
7. To the extent that it is my contention that decisions prior to the budgetary decision, including past reassignments... ultimately led to my being selected as a candidate whose position was to be eliminated, these prior assignments presented no adverse action to me until the eventual decision to use the assignment in selecting me to have my position eliminated. At the time of the reassignment, I was in no position to complain, and, absent knowledge of event [sic] that had yet to play themselves out, no capacity to make any meaningful complaint until my reference to these actions in [an] October 5, 2009 interview with the EEOC intake investigator.
Plaintiff began her work in the Office of Safety on October 8, 2008. McCleary-Evans Decl., ECF 14-1 ¶ 27. She felt she was "effectively dumped in a new position without space to work, in an office having no work for her to perform, and with assigned duties outside of her" classification "as an Administrative IV." Id. She does not describe what she did in the Office of Safety, but she says that she "proceeded within the limitations of [her] physical condition until December 2008, when [she] took leave from work for knee surgery." Id. ¶ 28. She returned to work in February 2009, and continued to receive medical treatment and use periodic sick leave until August 2009. Id.
On August 25, 2009, McCleary-Evans met with Simon Taylor, "Assistant to the MTA Administrator, " who informed her that her position "would be abolished to address the State's budget crisis for FY 2010." Id. ¶ 29. Specifically, Taylor provided her with "a letter announcing that the PIN supporting [her] position in the Office of Planning was to be eliminated effective October 1, 2009...." Id. Defendants have submitted a copy of a memorandum dated August 25, 2009, and addressed to plaintiff, from Beverly K. Swaim-Staley, "Acting Secretary" of MDOT. See ECF 9-8 at 1. The memorandum states, in relevant part:
We regret to inform you that, due to budgetary constraints your position will be abolished on October 1, 2009. Your separation from State service will be effective at the close of business on September 30, 2009. Under section 11-302 of the State Personnel and Pensions Article, this action is not considered a layoff as it is the result of a budget action.
Regarding plaintiff's meeting with Taylor on August 25, 2009, plaintiff adds: "I asked Mr. Taylor why I had been selected for elimination of my position, and his response did not address my specific question." McCleary-Evans Decl., ECF 14-1 ¶ 29.
B. Abolition of Plaintiff's Position
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.
In August 2009, cuts to the State's fiscal year 2010 budget were announced by the Governor and the Board using this third method. See Press Release, "Budget Reductions Before the Board of Public Works" (August 26, 2009), ECF 9-3. Plaintiff does not dispute that her position was abolished as part of these budget cuts. See, e.g., ECF 1 ¶ 39 ("... Defendant Employer proceeded to target Plaintiff by unreasonably assigning her to another position, ... for her subsequent removal from her position as a result of a decision to eliminate the position to which she came to be assigned for budgetary reasons."); Opposition to M.S.J., ECF 14 at 5 ("On the basis of... [defendants' decision to eliminate plaintiff's job], Plaintiff's position would be abolished to address the State's budget crisis for FY 2010."); Opposition to Motion, ECF 44 at 1-2 ("... Plaintiff's discrimination ...