United States District Court, D. Maryland
Richard D. Bennett United States District Judge
Faye Beatrice Hayes (“Plaintiff” or
“Hayes”) brings this pro se action
against Defendants the State of Maryland, the Maryland
Transit Administration (“MTA”) and several MTA
employees in their individual and official capacities
(collectively, “Defendants”), alleging violations
of Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. § 2000e, et seq.; the
American with Disabilities Act of 1990 (“ADA”),
42 U.S.C. § 12112, et seq.; the Family and
Medical Leave Act of 1993 (“FMLA”), 29 U.S.C.
§ 2601, et seq.; the Maryland Fair Employment
Practices Act (“MFEPA”), Md. Code Ann., State
Gov't, § 20-602 (equal opportunity policy
statement), 20-606 (employment discrimination), 20-607
(unlawful compensation),  20-702 (fair housing); and conspiracy to
interfere with civil rights, 42 U.S.C. § 1985. Currently
pending before this Court is Defendant's Motion to
Dismiss, or, in the Alternative, Motion for Summary Judgment
(ECF No. 17); Plaintiff's Motions to Strike Affidavit of
James C. Newton, Sr. (ECF No. 22) and Affidavit of Bart P.
Plano (ECF No. 23); and Plaintiff's Motion for Leave to
File Sur-reply (ECF No. 28). The parties' submissions
have been reviewed, and no hearing is necessary. See
Local Rule 105.6 (D. Md. 2016).
further explained below, Defendant's Motion to Dismiss,
or, in the Alternative, for Summary Judgment (ECF No. 17) is
GRANTED. Specifically, Summary Judgment is ENTERED in favor
of Defendants with respect to Hayes' ADA, FMLA, Title
VII, and MFEPA retaliation claims. All of Hayes'
remaining claims are DISMISSED. Plaintiff's Motions to
Strike Affidavit of James C. Newton, Sr. (ECF No. 22) and
Affidavit of Bart P. Plano (ECF No. 23) are DENIED.
Plaintiff's Motion for Leave to File Sur-reply (ECF No.
28) is DENIED.
ruling on a motion to dismiss, this Court “accept[s] as
true all well-pleaded facts in a complaint and construce[s]
them in the light most favorable to the plaintiff.”
Wikimedia Found. v. Nat' Sec. Agency, 857 F.3d
193, 208 (4th Cir. 2017) (citing SD3, LLC v. Black &
Decker (U.S.) Inc., 801 F.3d 412, 422 (4th Cir. 2015)).
Further, as a pro se Plaintiff, this Court has
“liberally construed” Hayes' pleadings and
held them to “less stringent standards than formal
pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007); Alley v. Yadkin
County Sheriff Dept., No. 17-1249, 698 Fed.Appx. 141,
2017 WL 4415771 (4th Cir. Oct. 5, 2017).
27, 1994 Hayes began working at the MTA as a Bus Operator;
she became a Bus Supervisor in September 2005. (Am. Compl.
¶¶ 2, 3, ECF No. 14.) She alleges that she suffers
from an “invisible disability” stemming from an
incident that occurred prior to her employment with the MTA
which severely limits her ability to engage in daily
activities. (Id. at ¶ 4.) The incident required
several surgeries and other medical procedures and forced her
to take a leave of absence from work, ending in December
2016. (Id. at ¶ 30, 33.) Since then, Hayes'
physical condition caused her to have sporadic, unforeseeable
absences from work. (Id. at ¶ 51.) Hayes
Complaint catalogues several alleged incidents of
discrimination and rights violations related to her
disability and need for intermittent leave.
returning to work in December 2014 following a series of
medical evaluations, Hayes requested an ergonomic chair as an
accommodation for her disability. (Id. at ¶
33-34.) On February 27, 2016 Hayes asked MTA representative
Bart Plano for assistance obtaining the chair. (Id.
at ¶ 35.) On March 1, 2016, the MTA provided Hayes with
a catalog of chairs and allowed her indicate which chair she
preferred. (Id. at ¶ 35.) On September 7, 2016,
the chair arrived. (Id. at ¶ 37.) Hayes
complains that a co-worker sat in her ergonomic chair at a
mandatory staff meeting without her permission. (Id.
at ¶¶ 55-59.)
alleges that her requests for time off were handled in a
discriminatory manner. On July 5, 2016, Terri Gorman, Chief
Controller, permitted Hayes to trade days off with another
employee. (Id. at ¶ 38.) Subsequently, Hayes
was no longer permitted to trade days off with other
employees. (Id. at ¶ 40.) At the same time, Ms.
Gorman altered company policy governing days off to allow
another employee, David Powell, to obtain nine days off to
coach his baseball team. (Id. at ¶¶
42-44.) In about September 2016, Hayes sought to change her
shift so that she could arrive at 6:00 am rather than 4:00
am. (Id. at ¶ 53.) Rather than grant this
request outright, Gorman directed her to swap her work hours
with another employee whose shift began at 6:00 am.
(Id. at ¶ 54.) Hayes also complains that she
was the only employee on her shift scheduled to work on
Thanksgiving Day 2016. (Id. at ¶ 73.)
December 9, 2016, Powell emailed employees and explained that
the MTA would no longer schedule shifts according to employee
seniority as it had done in the past. (Id. at ¶
113.) As a result, other employees with lesser seniority than
Hayes were able to takes weekends off, while her days off
from work fell on Wednesdays and Thursdays. (Id. at
Complaint opines on several instances of alleged FMLA
interference. On April 13, 2016, Hayes' request for FMLA
leave was denied. (Id. at ¶ 48.) Shortly
thereafter, she received approval to take FMLA leave through
April 21, 2017. (Id. at ¶ 49.) On September 21,
2016 Gorman implemented a new policy requiring employees to
provide two-hours' notice of their requests for FMLA
leave. (Id. at ¶ 50.) In response, Hayes
provided a note from her surgeon to support her request to be
allowed to provide notice of her leave within one hour of her
shift. (Id. at ¶ 51.) Gorman did not grant this
request. (Id. at ¶ 52.)
sought leave from work on the evening of Saturday, November
12, 2016, because of her medical condition. (Id. at
¶ 81.) Her employer granted her leave and others worked
in her stead. (Id. at ¶¶ 83-84.) When she
returned on November 15, 2016, James C. Newton, Sr., Terri
Gorman, and David Powell held a meeting with Hayes.
(Id. at ¶ 86.) At that meeting, Newton asked if
she had called out of work the previous Saturday, and
explained that he had reason to believe that she had attended
an event while she claimed to be on medical leave.
(Id. at ¶¶ 87-88.) This greatly upset
Hayes: her heart rate increased, her breath quickened, and
her muscles tightened. (Id. at ¶ 89.) In her
car, she experienced an “emotional, mental
breakdown.” (Id. at ¶ 91.) She drove to
Concentra Medical Center for treatment, but was unable to
obtain medical care. (Id. at ¶¶ 92-93.)
these incidents, Hayes alleges that she made several internal
complaints to various MTA employees. On November 16, 2016,
she complained to Senior Executive Sean Adgerson and Bart P.
Plano about “unlawful employment action.”
(Id. at ¶ 10.) In response, Adgerson explained
that he “knew all about the chair.”
(Id.) The next day, Hayes attempted to contact MTA
Administrator Paul Comfort to register another complaint, but
her comments were re-routed to Adgerson and Plano.
(Id. at ¶ 12.) Hayes made additional attempts
to contact Comfort via email in November and December.
(Id. at ¶ 13.) On December 14, 2016, Hayes
contacted Senior Executive Peter Tollini to discuss her
complaints and warned him that she intended to file charges
with the EEOC. (Id. at ¶ 22.) Tollini replied
that he “saw the Facebook post.” (Id.)
her November 15, 2016 meeting with MTA management, Hayes had
difficultly returning to work. On November 17, 2016 she
attended an appointment with her doctor who issued her a
“work slip” with a return date of December 1,
2016. (Id. at ¶ 16.) On January 4, 2017, Hayes
attended another medical appointment and obtained another
work slip with a return date of February 2, 2017.
(Id. at ¶ 18.)
November 23, 2016 Hayes was scheduled to attend a
“mitigating circumstances conference” to discuss
allegations against her for inappropriately using FMLA leave
and making false statements to management. (Id. at
¶¶ 95-96.) Hayes did not see email correspondence
concerning this call until November 27, 2016. (Id.
at ¶ 94.) Shortly thereafter, Hayes was informed that
she had been accused of lying about the circumstances of her
leave from work on November 12, 2016. (Id. at ¶
98.) Specifically, her employer claimed that a Facebook
picture showed her attending the Park Heights Reunion at the
Pimlico Race Track that evening. (Id. at ¶
on these allegations, Hayes was suspended without pay for
five days from December 14, 2016 to December 20, 2016.
(Id. at ¶¶ 111-12.) On December 22, 2016
Hayes filed an initial Charge of Discrimination with the
Equal Employment Opportunity Commission (“EEOC”).
(Aff. of Bart P. Plano at ¶ 7, ECF No. 17-2.) On
February 3, 2017 Bart Plano, MTA Lead EEOC Compliance
Officer, received notice of this Charge. (Def.'s Ex. 1,
Attach. 1, ECF No. 17-3.) Hayes also submitted a
“Disciplinary Action Appeal Form” to challenge
her suspension. (Def.'s Ex. 1, Attach. 3, ECF No. 17-5;
Am. Compl. ¶¶ 112, 126.) On this form, Hayes wrote
that she “did not attend the reunion, I only dropped
someone off” and alleged that she was being retaliated
against for taking FMLA leave. (ECF No. 17-5.) Subsequently,
Hayes received a letter from her employer dated January 13,
2017 captioned “Notification of Resignation without
Notice.” (Def.'s Ex. 1, Attach. 4, ECF No. 17-6;
Compl. ¶¶ 25, 128.) The letter explained that she
had effectively resigned by failing to contact her employer
for five consecutive days about her leave of absence.
(Def.'s Ex. 1, Attach. 4; Compl. ¶ 127.)
January 26, 2017 Hayes filed an Amended Charge of
Discrimination with the EEOC. (Aff. of Bart P. Plano at
¶ 7; Am. Compl. ¶ 23.) The EEOC issued her a right
to sue letter on December 16, 2017. (Am. Compl. ¶ 23.) On
March 8, 2018 Hayes filed this lawsuit. Defendants have filed
a Motion to Dismiss, or, in the Alternative, Motion for
Summary Judgment. (ECF No. 17.)
Motion to Dismiss Pursuant to Rule 12(b)(1)
assert that some of Plaintiff's claims are barred because
Defendants are entitled to immunity under the Eleventh
Amendment. This Court treats motions to dismiss based on the
Eleventh Amendment under Federal Rule of Civil Procedure
12(b)(1). See Beckham v. National R.R. Passenger
Corp., 569 F.Supp.2d 542 (D. Md. 2008)
(“[A]lthough Eleventh Amendment immunity is not a
‘true limit' on this Court's subject matter
jurisdiction, . . . the Court concludes that it is more
appropriate to consider this argument under Fed.R.Civ.P.
12(b)(1) because it ultimately challenges this ...