United States District Court, D. Maryland
L. HOLLANDER, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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
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. 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.
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.
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.
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.
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.
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.
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.
STANDARDS OF REVIEW
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.
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).
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)).
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 ...