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Myers v. Maryland Department of Agriculture

United States District Court, D. Maryland

June 21, 2018

KATHY MYERS
v.
MARYLAND DEPARTMENT OF AGRICULTURE

          MEMORANDUM OPINION

          ELLEN L. HOLLANDER, UNITED STATES DISTRICT JUDGE

         The self-represented plaintiff, Kathy Myers, filed an employment discrimination lawsuit against her former employer, the Maryland Department of Agriculture (“MDA”), defendant. ECF 1. She appended several exhibits to her suit. See ECF 1-1; ECF 1-2. Myers alleges violations of Maryland State law; the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), 42 U.S.C. § 300gg, 29 U.S.C. § 1181 et seq. and 42 U.S.C. § 1320 et seq., and the Americans with Disabilities Act, as amended (“ADA”), 42 U.S.C. § 12101 et seq.[1]

         Among other things, Myers claims that between July 2014 and her termination on May 25, 2016, she was subjected to a hostile work environment and discrimination, as well as retaliation for protected activity, based on the disability of “severe depression, ” which she contends was “job related.” ECF 1 at 5, 6. She also complains that she suffered discrimination when MDA failed to select her in February 2016 for a “position vacancy” as a Soil Conservation Specialist III. ECF 1-2 at 2. And, she asserts that she was wrongfully discharged on May 26, 2017. Myers seeks compensatory and punitive damages. Id. at 7.

         Now pending is defendant's motion to dismiss or, in the alternative, for summary judgment. ECF 8. It is supported by a comprehensive memorandum (ECF 8-1) (collectively, “Motion”) and several exhibits. The memorandum recounts, in detail, the factual history pertinent to plaintiff's employment and her allegations in the suit.

         Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Myers was informed of her right to respond to the Motion and that failure to respond could result in the dismissal of her case. ECF 9. Meyers did not respond.

         No oral argument is necessary to resolve the Motion. See Local Rule 105.6. For the reasons set forth below, I shall construe the Motion as a motion to dismiss and grant the Motion.

         I. BACKGROUND[2]

         This dispute concerns MDA's alleged employment discrimination against Myers based on Myers' disability of severe depression, a condition of which the MDA was allegedly aware. ECF 1 at 5.[3] Myers argues both that she was discriminated against because of her severe depression (ECF 1 at 5) and that the hostile work environment to which she was allegedly subjected caused her severe depression. Id. at 9.[4]

         Myers began her employment with the MDA in December 1998, and was employed by the MDA for 17 years, until she was terminated on May 26, 2016. ECF 1 at 7. Myers' most recent position at the MDA was as an Agricultural Resource Conservation Specialist (“ARCS”) II, where she was assigned to the Kent Soil Conservation District. ECF 1-2 at 2; ECF 8-2, ¶¶ 4, 5, 16. Myers alleges that, during the course of her employment, she “always received exceeds standards, outstanding reviews.” ECF 1 at 7.

         Plaintiff maintains that she “changed positions within the department” in October 2013, and the “Supervisor & staff had issues with [her] & wanted [her] out.” Id. Moreover, she asserts that she was subjected to “False acquisitions [sic] & harassment by Supervisor, staff that caused severe depression.” Id. at 6. She also states that her Supervisor, Dave Mister, has tried to “ruin [her] career” at MDA. ECF 1-2 at 8. In addition, she recounts that “FMLA was taken for 12 weeks due to a chronic health condition that was job related.” ECF 1 at 6. Based on plaintiff's exhibits, it appears that Myers was on leave from November 18, 2015 through January 5, 2016, and again from March 8, 2016 through April 19, 2016. ECF 1-2 at 8.

         Further, Myers alleges that she was subjected to a HIPAA violation based on a breach of confidentiality concerning her medical records. ECF 1 at 6; see ECF 1-2 at 6. She claims that in January 2016, she discovered that her medical documentation had been left unattended on a copier in a common area. ECF 1-2 at 2, 6-7. Myers reported her discovery to a Maryland Equal Employment Opportunity (“EEO”) officer, Jim Wallace. Id. at 2. The EEO did not take action, nor did it provide Myers with an explanation for its lack of action. Id.

         Myers also asserts failure to hire under the ADA, which arises from her non-selection for a vacant position within the MDA. In February 2016, Myers applied to be a Soil Conservation Specialist III. ECF 1-2 at 2. The MDA selected a different candidate for this position without explanation to Myers, even though Myers had previously held this position at the MDA. ECF 1-2 at 2, 9; ECF 1 at 7.[5]

         In addition, Myers claims that she was wrongfully discharged from the MDA on May 26, 2016. The MDA explained to Myers that she was being terminated for “not following policy.” ECF 1-2 at 2. Myers asserts, however, that she had consistently received “outstanding reviews” and “exceeds standards” during her employment. ECF 1 at 7.[6]

         Myers filed a Charge of Discrimination with the Maryland Commission on Civil Rights on August 18, 2016. On May 10, 2017, the EEOC issued a Notice of Right to Sue letter. Id. at 6; ECF 1-2. This suit followed on August 8, 2017.

         II. STANDARDS OF REVIEW

         The MDA moves to dismiss or, in the alternative, for summary judgment, asserting multiple grounds. It has recounted a detailed factual summary of plaintiff's employment, supported by exhibits. It argues lack of subject matter jurisdiction as to the hostile work environment claim, due to failure to exhaust; sovereign immunity; plaintiff's claims as to alleged discrimination are untimely as to matters that occurred before October 24, 2015, which was more than 300 days before Myers filed her charge of discrimination; and failure to state a claim. ECF 8-1. The standards of review for Fed.R.Civ.P. 12(b)(1) and Rule 12(b)(6) are relevant to resolving the Motion.

         A. Rule 12(b)(1)

         As noted, the MDA has moved to dismiss under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, asserting that plaintiff's claims are barred by sovereign immunity, and also that her claim of hostile work environment is barred for failure to exhaust. ECF 8. Under Rule 12(b)(1), the plaintiff bears the burden of proving, by a preponderance of evidence, the existence of subject matter jurisdiction. See Demetres v. East West Const., Inc., 776 F.3d 271, 272 (4th Cir. 2015); see also Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999).

         The Fourth Circuit recently affirmed that the defense of sovereign immunity is a jurisdictional bar, stating that “‘sovereign immunity deprives federal courts of jurisdiction to hear claims, and a court finding that a party is entitled to sovereign immunity must dismiss the action for lack of subject-matter jurisdiction.'” Cunningham v. Gen. Dynamics Info. Tech., Inc., ___ F.3d ___, No. 17-1592, 2018 WL 1915162, at *6 (4th Cir. Apr. 24, 2018) (quoting Ackerson v. Bean Dredging LLC, 589 F.3d 196, 207 (5th Cir. 2009)). Moreover, the exhaustion requirements of Title VII and the ADA also function as a jurisdictional bar in federal court, where plaintiffs have failed to comply with it. See Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 406 (4th Cir. 2013). Failure to comply generally mandates dismissal of a suit. Lorenzo v. Rumsfeld, 456 F.Supp.2d 731, 734 (E.D. Va. 2006) (citing Zografov v. Veterans Admin. Med. Ctr., 779 F.2d 967, 970 (4th Cir. 1985)).

         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.'” Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (citation omitted); accord Durden v. United States, 736 F.3d 296, 300 (4th Cir. 2013). “When a defendant makes a facial challenge to subject matter jurisdiction, ‘the plaintiff, in effect, is afforded the same ...


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