McCray v. Maryland Dep't of Transp., No. 13-1215 (4th Cir. 2014)
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Plaintiff, an employee of MTA for four decades, filed suit against MTA alleging various forms of discrimination after her position was terminated due to budget cuts. The court concluded that, because summary judgment was granted before plaintiff had a chance to discover facts essential to her claim, and she alleged discrimination occurring before any legislative activity, the district court's Rule 56(d) denial was an abuse of discretion. The court concluded, however, that the district court's dismissal of plaintiff's age discrimination and disability discrimination claims were barred by sovereign immunity. Accordingly, the court affirmed in part, reversed in part, and remanded.
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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1215 MARIE M. MCCRAY, Plaintiff - Appellant, v. MARYLAND DEPARTMENT Administration, OF TRANSPORTATION, Maryland Transit Defendant - Appellee. Appeal from the United States District Court for the District of Maryland, at Baltimore. Ellen L. Hollander, District Judge. (1:11-cv-03732-ELH) Argued: December 10, 2013 Decided: January 30, 2014 Before KING, GREGORY, and FLOYD, Circuit Judges. Affirmed in part, vacated in part, and remanded by published opinion. Judge Gregory wrote the opinion, in which Judge King and Judge Floyd joined. ARGUED: John Henry Morris, Jr., LAW OFFICE OF JOHN H. MORRIS, JR., Baltimore, Maryland, for Appellant. Jennifer L. Katz, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellee. ON BRIEF: Douglas F. Gansler, Attorney General of Maryland, Eric S. Hartwig, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellee. GREGORY, Circuit Judge: Appellant Marie McCray worked for the Maryland Transit Administration ( MTA ), a subsidiary of the Maryland Department of Transportation ( MDOT ), for nearly four decades before her position was terminated because of budget cuts. McCray brought this action in federal district court alleging various forms of discrimination. legislative The district court dismissed McCray s suit on immunity grounds could be conducted. discriminatory activity. before any meaningful discovery We find that McCray s complaint alleges conduct that occurred before any legislative Because McCray s case was dismissed before she had the opportunity to discover evidence necessary to her claims, we conclude that this dismissal was premature under Rule 56(d) of the Federal Rules of Civil Procedure. However, we find that McCray s age discrimination and disability discrimination claims are barred by sovereign immunity. We affirm in part, vacate in part, and remand. I. Marie McCray began working for the Authority, a precursor of the MTA, in 1971. 1 1 Maryland Transit Her principal duty Because this is an appeal from a summary judgment order, we present the facts in the light most favorable to the nonmovant. Robinson v. Clipse, 602 F.3d 605, 607 (4th Cir. 2010). 2 was to assemble an annual rider usage report for trains and buses. For three decades, she worked without incident and received no complaints from supervisors. McCray was diagnosed with diabetes in 1995, but the illness had no effect on her job performance until 2007. In June of that year, co-workers discovered her after she fainted on the floor near her desk. She was taken to the ambulance and treated for low blood sugar. hospital in an She was discharged the same day and returned to work one week later. After the incident, McCray s supervisor hectored her about her fitness and questioned her ability to work. supervisor, McCray s after Michael claims. she Deets, Deets provided whose behavior confronted written McCray documentation establishing her medical fitness. is It is this the core ceaselessly, from her of even doctors Eventually, Deets and a human resources official demanded that McCray submit to an independent medical examination. This McCray s doctors found: her work. independent doctor confirmed what the diabetes would have no impact on Nonetheless, Deets continued to plague McCray with questions about her health. In January of 2008, McCray s principal job the annual usage report was without transferred significant to work. a consultant, Other 3 and employees McCray in her was left unit were overwhelmed with work, but when McCray requested more responsibilities, she was denied. In October of 2008, McCray was summoned to a meeting with Deets, who informed her that her position was abolished as part of a series of budget cuts in Maryland. In 2008, the Governor and Board of Public Works cut roughly 830 state positions to meet a budget shortfall. McCray filed Employment a claim Opportunity with the Commission United States ( EEOC ), Equal alleging discrimination under Title I of the Americans With Disabilities Act ( ADA ), 42 U.S.C. §§ 12101 12113, the Age Discrimination in Employment Act ( ADEA ), 29 U.S.C. §§ 621 634, and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq. She alleged discriminatory animus that her due position to her was race, cut because of gender, age, and disability. Before any meaningful discovery was conducted, the MTA and MDOT filed a motion to dismiss. The agencies argued that because McCray s position was cut pursuant to a state budget decision, legislative immunity blocked the lawsuit. At this point, McCray had not had an opportunity to gather information that was integral to her case. She had no evidence about how different positions were chosen for elimination, or on how many individuals with disabilities were employed by the MDOT or MTA. 4 As such, she moved under Rule 56(d) of the Federal Rules of Civil Procedure for more time to conduct discovery. The district court converted the MDOT and MTA s motion into a motion for The claims. summary court judgment found and that then because dismissed her McCray s position was terminated pursuant to budget cuts, any lawsuit based on that termination was blocked by legislative immunity. Further, any discovery that McCray would conduct would be immaterial to the legislative immunity issue. Because [McCray s] proposed discovery relates to the motives of individual employees within the MTA and the MDOT, the district court reasoned, McCray has not identified any factual issue pertinent to . . . legislative immunity that remained in dispute. J.A. 110. court also denied McCray s 56(d) motion. As such, the McCray filed a timely appeal, and we have jurisdiction under 28 U.S.C. § 1291. II. The McCray s MDOT age and and MTA argue that disability argument is correct. sovereign discrimination immunity claims. v. Jordan, 415 U.S. 651 (1974). 425, 429 (1997). This [A]n unconsenting State is immune from suits brought in federal courts by her own citizens. state agencies. bars Edelman This protection extends to See Regents of Univ. of Cal. v. Doe, 519 U.S. Therefore, absent 5 abrogation of sovereign immunity or consent from Maryland, McCray cannot seek injunctive or monetary relief from the MDOT or MTA. Univ. of Ala. v. Garrett, 531 U.S. See Bd. of Trs. of the 356, 363 64 (2001). Sovereign immunity has not been abrogated for ADEA claims and ADA Title I claims. See id. at 374 (ADA Title I claims); Kimel v. Fla Bd. of Regents, 528 U.S. 62 (2000) (ADEA claims); cf. Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 489 90 (recognizing abrogation of sovereign immunity for Title II claims but not Title I claims). Thus, absent waiver of sovereign immunity, McCray s ADEA and ADA claims must be dismissed. The MDOT and MTA raise their sovereign immunity argument for the first time on appeal. MTA waived this argument. McCray argues that the MDOT and We disagree. Our case law is clear that because of its jurisdictional nature, a court ought to consider the issue of Eleventh Amendment immunity at any time, even sua sponte. Suarez Corp. Indus. v. McGraw, 125 F.3d 222, 227 (4th Cir. 1997). The Supreme Court has allowed sovereign immunity to be claimed for the first time before a Court of Appeals. Edelman, 415 U.S. at 677 78 ( [T]he Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court. ). are limits immunity. to how long a state may wait before There claiming For example, if a state loses a case on the merits 6 after extensive discovery has taken place, it is inappropriate for the state to then claim sovereign immunity. Tennessee, 322 F.3d 431, 435 (6th Cir. 2003). Ku v. As stressed by McCray, however, this case has not advanced to the discovery stage. Given the preliminary stage of the case, it is not too late for the MDOT and MTA to raise their sovereign immunity defense, even though it is raised before us for the first time. Thus, we affirm the district court s rulings on McCray s ADEA and ADA claims, albeit based on sovereign immunity, not legislative immunity. III. For McCray s remaining Title VII claim, the key question is whether the district court erred in dismissing McCray s action before judgment she should discovery. (1986). could conduct only be discovery. granted In after general, adequate summary time for See Celotex Corp. v. Catrett, 477 U.S. 317, 322 Summary judgment before discovery forces the non-moving party into a fencing match without a sword or mask. For this reason, when a party lacks material facts necessary to combat a summary judgment declaration that, motion, for she specified may file reasons, an affidavit [the party] present facts essential to justify its opposition. Civ. P. 56(d). In response, the 7 district court or cannot Fed. R. may defer consideration of the summary judgment motion, deny the motion, or issue any other appropriate order. We review discretion. a district court s Id. 56(d) ruling for abuse of Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002). A Rule 56(d) motion must be granted where the nonmoving party has not had the opportunity to discover information that is essential to his opposition. Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986)). should be Further, such motions are broadly favored and liberally granted in order to protect parties from premature summary judgment motions. non-moving Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Balt., 721 F.3d 264, 281 (4th Cir. 2013) (quoting Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010)). 2 Absent the legislative immunity 56(d) motion succeeds with ease. consideration, McCray s At the time of the summary judgment motion, McCray had not had the opportunity to depose supervisors at the MDOT and MTA. She had no information on how positions were chosen for termination or why other positions were kept. her to Without such information, it would be impossible for make an argument that 2 she was fired because of The language of Rule 56(d) appeared in Rule 56(f) before amendments in 2010, but these amendments made no substantial change to the rule. Id. at 375 n.6. 8 discriminatory reasons. As we have emphasized, 56(d) motions for more time to conduct discovery are proper in cases such as this one, where the main issue is one of motive and where most of the key evidence lies in the control of the moving party. See Harrods, 302 F.3d at 246 47 (citing Illinois State Employees Union v. Lewis, 473 F.2d 561, 565 66 (7th Cir. 1972)). Again, evidence of how defendants selected McCray s position (and other positions) for termination discrimination claims. go to the crux of McCray s race Absent discovery, she has no adequate access to this evidence, and therefore no way to shield herself from a premature summary judgment motion. Further, many factors counseling against granting a 56(d) motion are affidavit absent or here. declaration Non-movants before they must can generally succeed on file a an 56(d) motion, or if not, non-movants must put the district court on notice as to which specific facts are yet to be discovered. Nader v. Blair, 549 F.3d 953, 961 (4th Cir. 2008). case, McCray filed such a declaration material she needed to discover. and J.A. 93 95. In this identified the Similarly, non- movants do not qualify for Rule 56(d) protection where they had the opportunity to discover evidence but chose not to. Harrods, 302 F.3d at 246 (noting that non-movant was entitled to 56(d) protection in discovery ). part because it was not dilatory in pursuing There is no indication that McCray s inability to 9 gather evidence was due to her own delay. In sum, if we set the legislative immunity argument aside, this case is an easy one: McCray s 56(d) motion should be granted. However, as the district court noted, legislative immunity complicates the issue because the evidence that McCray has yet to discover is not material to whether defendants are entitled to legislative immunity. J.A. 110. This assertion is correct, but we nonetheless vacate, because McCray s complaint alleges discriminatory actions that occurred well before any legislative activity. For this reason, this behavior cannot be protected by legislative immunity, so the Rule 56(d) denial was premature. A legislative immunity that we review de novo. Cnty., 684 F.3d 462, finding is a legal determination Kensington Volunteer Fire v. Montgomery 470 71 (4th Cir. 2012). Legislative immunity protects those engaged in legislative functions against the pressures of litigation and the liability that may result. See E.E.O.C. v. Wash. Suburban Sanitary Comm n, 631 F.3d 174, 181 (4th Cir. 2011) [hereinafter Washington Suburban]. practical import overstate. Id. of It legislative prevents immunity those who is difficult were to defeated in elections from waging political war through litigation. promotes a healthier, more thriving class of The Id. It politicians by ensuring that legislative offices are not limited only to those individuals who are willing to withstand a lawsuit. 10 Id. The protections of legislators themselves. 55 (1998). on the immunity being claiming immunity. as fulfilled not the title Kensington, 684 F.3d at 470. . . . typically rules that affecting the larger population. involve establish alteration at 184 (internal omitted). the a of the actor Actions that adoption general of policy They also generally bear the outward marks of public decisionmaking. F.3d beyond Bogan v. Scott-Harris, 523 U.S. 44, 49, legislative prospective 631 extend The determination of legislative immunity is based function qualify legislative Washington Suburban, quotations Accordingly, marks, this Court citations has had and no trouble concluding that enacting a budget is a legislative act. See Kensington, 684 F.3d at 471. Also relevant to this case, the Supreme Court has noted that the termination of a position . . . unlike the hiring or firing of a particular employee, may have prospective implications and is therefore more likely to be legislative. parties accept Bogan, 513 U.S. at 56. that McCray s position was In this case, both terminated due to budget-making. 3 3 The government action in this case was carried out by the Governor and Board of Public Works not the legislature. By statute, Maryland law allows for limited budget cuts by action of the Governor and Board of Public works. Md. Code Ann., State Fin. & Proc. § 7-213(a). The Maryland constitution gives the governor a central role in cutting the budget when revenue falls short. Judy v. Schaefer, 627 A.2d 1039, 1049 (Md. 1993). One (Continued) 11 Finally, and most helpful to the MDOT and MTA, our case law shows that legislative immunity extends to those individuals who advise legislators. Kensington, 684 F.3d at 471; Baker v. Mayor & City Council of Balt., 894 F.2d 697, (4th Cir. 1990) (applying legislative immunity to a government department that recommended that a position be cut pursuant to a mayor s request), overruled on other grounds by Berkley v. Common Council of the City of Charleston, 63 F.3d 295, 303 (4th Cir. 1995); see also Baraka v. McGreevey, 481 F.3d 187, 196 97 (3d Cir. 2007) (holding that governor s appointee s actions in advising and counseling Governor McGreevey and the Legislature are also legislative and protected under legislative immunity). This case law stands for the proposition that just as a legislator is immune from discrimination lawsuits when she makes budget decisions based on improper animus, Legislative aides immunity is to a that legislator shield that are also protects immune. despicable motives as much as it protects pure ones. For this reason, the district court s conclusion is correct insofar as it shields the could argue that the budget cuts were therefore executive in nature, not legislative. We need not decide this thorny question, however, because our holding that the Rule 56(d) motion should have been granted rests on our finding that McCray s lawsuit targets discrimination that occurred before any legislative activity occurred. 12 MTA and MDOT from lawsuit based on the counsel they gave executive officials in Maryland who carried out the budget cuts. Nonetheless, alleges we vacate discriminatory our employees against decision brought a local age that In took that the place case, discrimination government agency, Sanitation Commission ( WSSC ). at 177. because complaint before the Our ruling in Washington Suburban today. an remand actions legislative activity began. guides and the former claim municipal with the Washington EEOC Suburban Washington Suburban, 631 F.3d In late 2005, the WSSC s Chief Information Officer conducted an assessment of the Information Technology department and concluded positions that it eliminated. should be Id. The restructured, with restructuring several required an increased budget, so WSSC executives met in 2006 and agreed to submit the new proposed budget to local legislators. Id. These legislators met to discuss the budget and sought advice from WSSC executives. Id. The legislators ultimately reached no decision on the proposal, which allowed the restructuring to go into effect by operation of law. Id. The EEOC investigated the WSSC and requested information about how the Chief Information Officer selected positions for termination. This Court allowed the subpoena to be enforced. Id. at 185. Part of the basis for our decision was that the EEOC s investigation was aimed at discriminatory actions taken 13 prior to and particular, after the investigatory the EEOC restructuring. can continue goals determining Id. its with whether at stated WSSC 183. In current discriminated in distributing training prior to the restructuring and whether it discriminated Inquiries in into hiring how problematic, as deliberations on the after WSSC would the the restructuring. developed inquiries proposal, its into because budget the these Id. would be legislators actions were legislative ones that were protected by legislative immunity. Id. at 183 84. We upheld the subpoena, however, because the investigation was aimed at discriminatory behavior prior to and after these legislative actions. As in Washington Suburban, McCray alleges discriminatory behavior that occurred before any legislative action took place. Per her complaint, her supervisor at the MTA stripped her of responsibilities in the years leading up to budget cuts. Even though her department was overwhelmed with work, her supervisor refused to give McCray additional responsibilities, even after she asked for more work. Thus, by the time of the 2008 budget crisis which led to the termination of McCray s position, Deets actions had already made adversely affected her. foregone conclusion discriminatory McCray vulnerable and therefore McCray alleges her termination was a because animus stripped her her 14 of supervisor driven her duties. Had by the legislature would be simply shielded terminated by McCray s legislative position, immunity. that action 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. See Crady v. Liberty Nat. Bank & Trust Co. of Ind., 993 F.2d 132, 136 (7th Cir. 1993) purposes (defining as significantly a including diminished tangible an employment employer material action giving for an ADEA employee responsibilities ) (cited with approval in Burlington Indus, Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). 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. This case presents a more difficult situation than Washington Suburban, which involved a subpoena during an initial investigation, rather than a lawsuit. distinction in Washington Suburban. We explicitly noted this The threat to legislative immunity and privilege in [full-blown lawsuits] is more acute 15 than it is here. Washington Suburban, 631 F.3d at 182 83. However, the importance of this point in Washington Suburban lends support to our ruling here. early stage of the proceedings We drew attention to the in that case because it was unclear whether the investigation would ever ripen into a case threatening legislative immunity. Id. at 183 ( We also cannot assume will the EEOC s projects. ). investigation follow the path WSSC In other words, a legislative immunity holding is premature if the case might evolve in a way that poses no threat to legislators. McCray s case is far past the investigatory stage, focuses but legislative it action. on Thus, behavior while the occurring case here before has any advanced beyond the stage considered in Washington Suburban, the cases are similar because McCray s lawsuit has not yet implicated legislative immunity and need not develop in a way that would pose a threat to legislators. In sum, we conclude that the Rule 56(d) motion should have been granted because McCray s lawsuit is aimed at discrimination that occurred before any legislative activity began. This is crucial to our 56(d) holding, because if legislative immunity were to apply, then the discovery that McCray requests would be irrelevant: the MDOT her lawsuit would be barred regardless of whether and discriminatory MTA helped animus. terminate However, 16 her position because because McCray s of lawsuit alleges discrimination occurring before any legislative activity, the summary judgment dismissal was premature. IV. Because summary judgment was granted before Appellant had a chance to discover facts essential to her claim, and she alleged discrimination occurring before any legislative activity, the district court s Rule 56(d) denial was an abuse of discretion. However, we find that the district court s dismissal of McCray s ADA and ADEA claims are supported by sovereign immunity. Accordingly, this case is AFFIRMED IN PART, VACATED IN PART, AND REMANDED. 17
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