IN THE UNITED STATES
FOR THE DISTRICT OF MARYLAND
AUSTINE R. FINK
JAMES E. RICHMOND, ET AL.
Civil Action No. DKC 2007-0714
Presently pending and ready for resolution are Defendants'
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6)
(paper 14), Plaintiff's motion for leave to file surreply (paper
27), and Plaintiff's motion for leave to file a second amended
complaint (paper 44). The issues have been fully briefed and the
court now rules, no hearing being deemed necessary. Local Rule
105.6. For the reasons that follow, the court will grant in part
and deny in part Defendants' motion to dismiss, deny Plaintiff's
motion for leave to file surreply, and grant Plaintiff's motion for
leave to file a second amended complaint.
Plaintiff, Austine Fink, has been an art teacher in Charles
County, Maryland since 1996. From 1996 to 2006, she taught art and
computer technology to students at John Hanson Middle School and
Mary H. Matula Elementary School. In March 2006, Plaintiff was
diagnosed with Barrett's Esophagus with High Grade Dysplasia, an
indicator of esophageal cancer. To treat the cancer, doctors
removed Plaintiff's esophagus in the summer of 2006. As a result
of the surgery, Plaintiff is required to eat small meals on a
regular basis and use the restroom with increased frequency. She
is also susceptible to vomiting and regurgitates when she bends
Plaintiff's recovery period lasted from August until December
2006. During her recovery period, Plaintiff took a leave of
absence from her teaching position. In July or August 2006,
Plaintiff's husband, Roger Fink, spoke to Defendant Keith A.
Hettel, the Assistant Superintendent for Human Resources for the
Charles County School Board, regarding Plaintiff's absence. Mr.
Fink informed Mr. Hettel of the expected duration of Plaintiff's
absence and that Plaintiff would use personal, sick, Family Medical
Leave Act, and donated leave. A Charles County Teacher's
Association representative requested leave on behalf of Plaintiff
and Defendants granted the leave request.
On October 24, 2006, Plaintiff met with Mr. Hettel to request
that the Board transfer her to a high school art teacher,
administrative, or supervisory position. She explained that her
surgery affected her ability to interact with small children, as
she can no longer bend over to talk to them and she would
frequently have to leave the classroom for bathroom breaks.
Plaintiff also informed Mr. Hettel that her physician would likely
approve her return to work by mid-November. Mr. Hettel represented
to Plaintiff that he would identify potential positions for her.
On or about November 27, 2006, the Board published an art
teacher vacancy for McDonough High School in the "School News"
publication. On or about November 29, Plaintiff asked Mr. Hettel
to make the McDonough position available to her. Mr. Hettel
responded that he would investigate whether the McDonough position
was available, but that the Board might also have a part-time
gifted and talented elementary classroom teaching position.
Plaintiff followed up with Mr. Hettel on December 1 regarding the
McDonough position and other available teaching positions. She
also volunteered her physician's written authorization stating that
she may return to work.1 Mr. Hettel did not respond.
Mr. Fink e-mailed Defendant James E. Richmond, Charles County
Superintendent for Schools, to confirm that Plaintiff intended to
return to work, she required an accommodation, and she had
previously made her accommodation requests to Mr. Hettel. On
December 7, Plaintiff delivered a letter from her physician stating
that her condition prevented her from teaching at the elementary
and middle school grade levels, but that she may return to work at
the high school level. The same day, Mr. Hettel informed Plaintiff
that the Board had filled the McDonough position. Several weeks
later, the Board officially hired a recent college graduate for the
On January 8, 2007, the Board filled an art teacher vacancy at
Thomas Stone High School. The Board did not announce the vacancy
prior to filling it.
Mr. Hettel informed Plaintiff on December 18 that she should
report to La Plata High School, where she would serve as a fulltime
high school art teacher. When Plaintiff arrived at La Plata
on January 2, 2007, she learned that she would not be an art
teacher, but rather a substitute teacher. Her responsibilities
included working at Matula, her former elementary school, and
mentoring Mr. Hettel's son. Shortly thereafter, on January 8, the
Board instructed Plaintiff to report to North Point High School as
an art teacher on an as-needed basis. She began work as a
substitute teacher, not an art teacher. While Plaintiff worked at
North Point, the Board did not pay her commensurate with her
increased hours, nor did it provide her with lesson planning time.
During the spring semester, the Board assigned Plaintiff to
supervise the "In School Retention" ("ISR") class. Her ISR duties
involved monitoring students with discipline problems who have been
suspended from attending their regular classes. The ISR classroom
is a converted storage closet that can hold up to nine students.
During her ISR assignments, Plaintiff was not permitted to take
breaks, including bathroom breaks, or to leave the classroom during
the school day without taking the students with her. She had no
lesson planning time. During one of Plaintiff's ISR assignments,
the students were present for only ninety minutes of the school
day. The Board required Plaintiff to remain alone in the classroom
for the remainder of the day.
Other substitute teaching assignments included covering
classes with middle school students. Another assignment was to sit
in the library for half of a day without any duties.
The Board did not pay Plaintiff for her first two weeks of
work in January 2007. The Board claimed that it believed it had
overpaid Plaintiff in 2006 for 119 hours of sick leave and
therefore she had to work without pay until February 2.
On March 20, 2007, Plaintiff filed her complaint against the
Charles County Board of Education, James E. Richmond,
Superintendent, and Keith A. Hettel, Assistant Superintendent for
Human Resources, alleging violations of the Rehabilitation Act of
1973, 29 U.S.C. ¤ 794, Title I and II of the Americans with
Disabilities Act, 29 U.S.C. ¤¤ 12112, 12131, 42 U.S.C. ¤ 1983, and
the Maryland Wage Collection and Payment Act, MD. CODE ANN., LAB. &
EMPL., ¤ 3-501, et seq. (West 2007). (Paper 1). On March 27, 2007,
Plaintiff filed a Charge of Discrimination with the United States
Equal Employment Opportunity Commission against Defendants for
violations of Title I of the ADA. The EEOC issued Plaintiff a
Notice of Right to Sue on May 1, 2007 and closed the case. On May
4, 2007, Plaintiff filed her Amended Complaint. (Paper 10).
The following facts are related from Plaintiff's proposed
second amended complaint. (Paper 44-4). During the summer of
2007, Defendants offered Plaintiff a full-time position as an art
teacher at North Point High School. They offered Plaintiff various
accommodations, but did not offer her a fixed classroom for her
classes. She would have to "float" between other teachers'
classrooms for each class period. Plaintiff's doctor issued a
written opinion that Defendants' proposed accommodations were
inadequate unless they provided a fixed classroom. On August 2,
Plaintiff sought a preliminary injunction to compel Defendants to
provide Plaintiff with a fixed classroom. The court held a hearing
on August 13 and denied the motion from the bench, finding that
Defendants' proposed accommodations for Plaintiff were reasonable.
On August 16, 2007, Defendants placed Plaintiff on a paid
leave of absence pending the outcome of a medical examination by a
Board designated physician to determine Plaintiff's fitness to
return to work. On August 24, Plaintiff consented to the medical
examination and accepted the accommodations offered by Defendants
at the August 14 preliminary injunction hearing. Plaintiff
underwent her fitness for duty medical examination on September 26,
On October 11, Defendants informed Plaintiff that they would
be returning her to work on October 15. They indicated that they
would not be providing Plaintiff with a wheelchair or permanent
aide to assist Plaintiff's travel between classrooms. On October
12, Plaintiff sought clarification on whether Defendants would be
providing the wheelchair and aide. Defendants stated that they
would not be providing a wheelchair and would only provide an aide
as needed. The same day, Plaintiff filed a renewed motion for
preliminary injunction seeking the court to compel Defendants to
provide the wheelchair and permanent aide.
Because of Defendants' failure to provide the wheelchair and
permanent aide, Plaintiff did not return to work on October 15.
The same day, Defendants mailed Plaintiff a letter indicating that
they had removed her from paid medical leave. The letter stated
that Defendants would charge Plaintiff sick and personal leave for
each day she failed to return to work and would treat her absences
as leave without pay once her paid leave is exhausted.
Subsequently, Plaintiff filed the motion for leave to file a second
amended complaint (paper 44).
II. Motion for Leave to File Second Amended Complaint
Plaintiff seeks leave to file a second amended complaint in
which she alleges acts of retaliation after the filing of the First
Amended Complaint on May 4, 2007. The proposed amendments describe
the events that occurred since Plaintiff filed her amended
complaint in May 2007, including the new assignment to North Point
High School and the disputes over necessary accommodations, and she
seeks to amend counts II and IV.2
Rule 15(a) of the Federal Rules of Civil Procedure provides
that "a party may amend the party's pleading only by leave of court
or by written consent of the adverse party; and leave shall be
freely given when justice so requires." Fed.R.Civ.P. 15(a).
Refusal of such leave, without a justifying reason, is not only an
abuse of discretion, but is "inconsistent with the spirit of the
Federal Rules." Foman v. Davis, 371 U.S. 178, 182 (1962). Denial
of leave to amend should occur "only when the amendment would be
prejudicial to the opposing party, there has been bad faith on the
part of the moving party, or the amendment would be futile."
Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986).
Defendants assert that Plaintiff's amendments are futile.
"Determinations of futility under Rule 15(a) are governed by the
standards for motions to dismiss." Classen Immunotherapies, Inc.
v. King Pharms., Inc., 403 F.Supp.2d 451, 459 (D.Md. 2005); see
also Perkins v. United States, 55 F.3d 910, 917 (4th Cir. 1995).
Defendants argue that the amendments are futile because they are
barred by Plaintiff's failure to exhaust her administrative
remedies. Defendants assert that Plaintiff is not merely asserting
additional facts to support her retaliation claims, but is
attempting to make a new allegation of employment discrimination
which she has not filed with the EEOC. Alleged retaliation arising
from the complaint that was filed administratively may be raised
for the first time in court. Nealon v. Stone, 958 F.2d 584, 590 (4th
Cir. 1992). Given the early stage at which Plaintiff sought leave
to amend to assert new retaliation claims, Defendants have not been
prejudiced. Of course, at some point, the pleadings must be
closed, but that point had not been reached when Plaintiff filed
The ability of the allegations of retaliation to survive the
motion to dismiss is a separate question and will be addressed in
the next section.
III. Motion to Dismiss
A. Standard of Review
The purpose of a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6) is to test the sufficiency of the plaintiff's complaint.
See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999).
Except in certain specified cases, a plaintiff's complaint need
only satisfy the "simplified pleading standard" of Rule 8(a),
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002), which
requires a "short and plain statement of the claim showing that the
pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2).
Nevertheless, "Rule 8(a)(2) still requires a 'showing,' rather than
a blanket assertion, of entitlement to relief." Bell Atlantic
Corp. v. Twombly, 127 S.Ct. 1955, 1965 n.3 (2007). That showing
must consist of at least "enough facts to state a claim to relief
that is plausible on its face." Id. at 1974.
In its determination, the court must consider all well-pled
allegations in a complaint as true, Albright v. Oliver, 510 U.S.
266, 268 (1994), and must construe all factual allegations in the
light most favorable to the plaintiff. See Harrison v.
Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999)
(citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.
1993)). The court must disregard the contrary allegations of the
opposing party. See A.S. Abell Co. v. Chell, 412 F.2d 712, 715 (4th
Cir. 1969). The court need not, however, accept unsupported legal
allegations, Revene v. Charles County Comm'rs, 882 F.2d 870, 873
(4th Cir. 1989), legal conclusions couched as factual allegations,
Papasan v. Allain, 478 U.S. 265, 286 (1986), or conclusory factual
allegations devoid of any reference to actual events, United Black
Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979). In sum,
"[f]actual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in fact)."
Twombly, 127 S.Ct. at 1965 (internal citations omitted).
B. Sovereign Immunity
Defendants assert that they are immune to suit for monetary
damages for violations of Title II of the ADA and ¤ 504 of the
Rehabilitation Act. Plaintiff argues that Congress abrogated
Defendants' sovereign immunity, or alternatively, if the court
finds that Defendants are immune, that Defendants waived their
immunity by accepting federal funds.
The Eleventh Amendment provides that "the judicial power of
the United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United
States by Citizens of another State or by Citizens or Subjects of
any Foreign State." U.S. CONST. AMEND. XI. The Supreme Court has
held that the Eleventh Amendment protects "state agents and state
instrumentalities" as well as the States themselves. Regents of
Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997). The parties agree
that Defendants are arms of the state and qualify for Eleventh
Amendment immunity if that immunity has not been waived or
abrogated. E.g., Biggs v. Bd. of Educ. of Cecil County, 229
F.Supp.2d 437, 444 (D.Md. 2002).
1. Rehabilitation Act
The RA contains a waiver provision providing, in part, that
"[a] State shall not be immune under the Eleventh Amendment of the
Constitution of the United States from suit in Federal court for a
violation of section 504 of the Rehabilitation Act of 1973." 42
U.S.C. ¤ 2000d-7. The Fourth Circuit has determined that the
waiver condition in the RA is valid. Constantine v. Rectors and
Visitors of George Mason Univ., 411 F.3d 474, 490-91 (4th Cir.
2005); Lewis v. Bd. of Educ. of Kent County, No. JFM-07-955, 2007
WL 2343659, at *1 (D.Md. Aug. 14, 2007). Accordingly, any state
program or activity that receives federal funding must not
discriminate on the basis of disability. Constantine, 411 F.3d at
Plaintiff alleges that because the Board receives federal
funds, it has waived its Eleventh Amendment immunity. Defendants
counter that Constantine does not control the present case because
Constantine dealt with a public university, not a public county
board of education governing grades K-12. Defendants argue that a
public school system's waiver premised on the acceptance of federal
funds is ineffective because it is coerced. Defendants posit that
they are required to provide a free education to all students.
Universities, by contrast, may choose, before accepting federal
funds, whether to provide educational services to disabled
students. Further, Defendants are subject to state-imposed
budgetary guidelines, including a statute establishing the minimum
amount a board is required to request. Defendants also note that
the State Board of Education, not the county board, has the
authority to accept federal funds.
The Lewis court rejected a very similar argument that a county
school board's waiver was the product of federal coercion. See
2007 WL 2343659, at *1. In upholding the waiver, the court noted,
"the pertinent question is whether Congress has coerced a state to
accept federal funds, Constantine, 411 F.3d at 493, not whether the
state requires its own agencies to accept federal funds." Id. at
*1 n.1. This reasoning is entirely persuasive, as Defendants have
not presented evidence that Congress's financial inducement to
Maryland amounts to coercion. Defendants should note that they are
only potentially entitled to the doctrine of sovereign immunity
because the Board is considered a State agency. That is, the Board
shares the state of Maryland's sovereign immunity. If the Board
were considered independent, it would not enjoy sovereign immunity
at all. Thus, it is not unfair to measure waiver of that immunity
based on the action of the state of Maryland in accepting federal
funds, and passing that waiver on to Defendants. Thus, Defendants'
position is disingenuous, at best. First, they claims the Eleventh
Amendment sovereign immunity due to the state of Maryland by virtue
of the Board's status under Maryland law and then second, assert
that they (as opposed to the state of Maryland itself) cannot be
held to have waived that immunity by accepting federal funds
because the State coerced the Board to do so. The County Board
cannot have it both ways. Either it is not entitled to sovereign
immunity in the first place, or, if it is so entitled, it must take
the entirety of the state of Maryland's position, and be held to
have waived that protection. The restrictions that Maryland
includes in its entities' budgets are irrelevant to the federal
coercion analysis. Therefore, Plaintiff's claims under Count I for
violations of the Rehabilitation Act of 1973 will not be
2. Title II of the ADA
Congress may abrogate States' immunity "only by stating
unequivocally its desire to do so and only pursuant to a valid
exercise of constitutional authority." Constantine, 411 F.3d at
484 (citing Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55
(1996)). There is no question that Congress unequivocally stated
its desire to abrogate immunity in Title II by providing that "[a]
State shall not be immune under the eleventh amendment to the
Constitution of the United States from an action in Federal or
State court of competent jurisdiction for a violation of this
chapter." 42 U.S.C. ¤ 12202. See Tennessee v. Lane, 541 U.S. 509,
518 (2004); Board of Trs. of Univ. of Ala. v. Garrett, 531 U.S.
356, 363-64 (2001).
Congress has the power to give effect to its intent only if
the enactment of Title II was a valid exercise of authority under
¤ 5 of the Fourteenth Amendment. Lane, 541 U.S. at 518. Section
5 "authorizes Congress to enact 'appropriate legislation' to
enforce" the substantive guarantees of the Fourteenth Amendment.
Constantine, 411 F.3d at 484. Congress is empowered to "enact
prophylactic legislation prohibiting conduct that is 'not itself
unconstitutional,'" but it may not substantively redefine
Fourteenth Amendment protections. Id. (quoting City of Boerne v.
Flores, 521 U.S. 507, 518 (1997)). In Flores, the Supreme Court of
the United States announced that for ¤ 5 legislation, "[t]here must
be a congruence and proportionality between the injury to be
prevented or remedied and the means adopted to that end." 521 U.S.
at 520. To determine whether Congress has exceeded its ¤ 5
authority, courts apply a three-part test: (1) "identify the
constitutional right or rights that Congress sought to enforce when
it enacted Title II," Lane, 541 U.S. at 522; (2) determine "whether
Congress enacted Title II in response to a pattern of
unconstitutional disability discrimination," Constantine, 411 F.3d
at 485; and (3) whether the rights and remedies created by Title II
are "congruent and proportional to the constitutional rights it
purports to enforce and the record of constitutional violations
adduced by Congress." Lane, 541 U.S. at 548.
The Supreme Court has addressed abrogation of sovereign
immunity in the context of Title I and Title II. In Board of
Trustees of the University of Alabama v. Garrett, the Court found
that Congress exceeded its ¤ 5 authority by abrogating sovereign
immunity in Title I. 531 U.S. at 368. The Court found that
Congress failed to document a history and pattern of the states'
irrational employment discrimination practices against the
disabled. Id. Three years later, the Court addressed sovereign
immunity in Title II. In Tennessee v. Lane, the Court upheld
Congress's abrogation of sovereign immunity in Title II as it
applied to the fundamental right of access to judicial services.
541 U.S. at 523.
In United States v. Georgia, 546 U.S. 151 (2006), the Supreme
Court provided additional guidance to courts addressing sovereign
immunity in Title II. The Court held that "insofar as Title II
creates a private cause of action for damages against States for
conduct that actually violates the Fourteenth Amendment, Title II
validly abrogates state sovereign immunity." Id. Yet the Court
did not foreclose the possibility that Congress properly exercised
its ¤ 5 powers by abrogating immunity as to misconduct that does
not violate the Fourteenth Amendment. The Court counseled that
courts examining Title II challenges alleging conduct that is not
unconstitutional should determine "whether Congress's purported
abrogation of sovereign immunity as to that class of conduct is
nevertheless valid." Id. To determine whether Congress has
properly abrogated Eleventh Amendment immunity in Title II, the
court applies a three-step test: (1) identify which aspects of the
State's alleged conduct violate Title II; (2) identify to what
extent the misconduct also violates the Fourteenth Amendment; and
(3) insofar as the alleged misconduct violates Title II but not the
Fourteenth Amendment, determine whether Congress's abrogation of
sovereign immunity is nevertheless valid. Id.; Bowers v. Nat'l
Collegiate Athletic Ass'n, 475 F.3d 524, 553 (3d Cir. 2007); Toledo
v. Sanchez, 454 F.3d 24, 31 (1st Cir. 2006); Klinger v. Dir., Dep't
of Revenue, State of Mo., 455 F.3d 888, 893-94 (8th Cir. 2006);
Chase v. Baskerville, 508 F.Supp.2d 492, 499 (E.D.Va. 2007);
Goonewardena v. New York, 475 F.Supp.2d 310, 323 (S.D.N.Y. 2007).
Plaintiff asserts that (1) a public school employee has a
constitutionally protected fundamental right and interest in her
employment, citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 541 (1985) or (2) the Fourth Circuit has already determined
that Title II of the ADA encompasses public employment
discrimination, citing Doe v. Univ. of MD. Med. Sys. Corp., 50 F.3d
1261, 1264-65 (4th Cir. 1995).4 Whether the ADA encompasses public
employment discrimination is not the issue. Rather, the question
is whether the right sought to be vindicated is so fundamental as
to be equivalent to one protected by the Fourteenth Amendment. Doe
did not answer that question. Furthermore, as pointed out by
Defendants, Plaintiff did not lose her job, calling into question
whether she can rely on any fundamental right to employment.
The question of whether the interest in public employment is
of constitutional magnitude appears to be somewhat unresolved:
, Lane, and Constantine provide the
framework for analyzing the sovereign immunity
question presented in this case, but specific
guidance from the Supreme Court or the Fourth
Circuit is presently absent where the
plaintiff asserts an employment, or
quasi-employment, claim under Title II of the
ADA rather than Title I.6 Although the Lane
Court found a pattern of state discrimination
against the disabled that was "clear beyond
peradventure" in the provision of public
services, the Garrett Court found only minimal
evidence of unconstitutional state
discrimination in employment.
In this case, Dr. Der Sarkissian alleges that
he was unlawfully discharged from his medical
residency position at WVU-a position that has
both academic and employment characteristics.
At least one court, relying on Garrett, has
held that Congress did not validly abrogate
sovereign immunity with regard to state
employment discrimination actions brought
under Title II. Clifton v. Georgia Merit Sys.,
2007 WL 734186 (N.D.Ga. Mar. 6, 2007)("a
plaintiff should not be permitted to
circumvent the holding of Garrett immunizing
states from employment discrimination claims
brought pursuant to Title I of the ADA by
commencing suit under Title II . . .").
Nonetheless, because this Court concludes that
a medical residency is more akin to a program
of higher education than an employment
position, [footnote omitted] the Fourth
Circuit's decision in Constantine controls.
The court in Constantine held that, as applied
to higher education, the remedial measures
contained in Title II represent a congruent
and proportional response to the history and
pattern of unconstitutional disability
discrimination in public services that was
identified in Lane. See Constantine, 411 F.3d
at 490. After Constantine, it is settled that,
at least in this circuit, States do not have
immunity from claims pursuant to Title II of
the ADA, as it applies to the provision of
public higher education. Therefore,
Constantine controls the Eleventh Amendment
inquiry on Count II, the failure to
accommodate claim. Because Congress has
validly abrogated immunity under Title II of
the ADA as it applies to public higher
education, WVU and Dr. Nuss in her official
capacity are not immune from suit for money
damages on this Count. Accordingly, Count II
of the amended complaint will not be dismissed
as to WVU and Dr. Nuss in her official
Sarkissian v. West Virginia Univ. Bd. of Governors, No. 1:05CV144,
2007 WL 1308978, at *7-8 (N.D.W.Va. May 3, 2007).
Although it is unlikely that Plaintiff has stated a viable
Fourteenth Amendment claim, either to employment generally or to
specific aspects of her teaching role, as discussed more fully in
connection with the ¤ 1983 claims, given the uncertainty on the
issue and the fact that the case will proceed under the RA in any
event, final determination whether a valid ADA Title II claim
exists need not be made now. In any event, Plaintiff may seek
prospective injunctive relief from Defendants Hettel and Richmond
under the ADA, even if sovereign immunity bars the damage action.
C. Retaliation: Counts II and IV
Despite the ambiguity of the complaint, it appears that
Plaintiff seeks to allege that she suffered two rounds of
retaliation from Defendants: once after she first requested an
accommodation and again after she was refused an accommodation.
Plaintiff alleges retaliation claims under both the Rehabilitation
Act and the ADA. Defendants urge the court to dismiss the claims
on the basis that the claims are barred by sovereign immunity, or
alternatively, that Plaintiff has failed to state a prima facie
case. The sovereign immunity analysis for retaliation follows the
analysis performed supra under the Rehabilitation Act and ADA.
The retaliation analysis is the same for the ADA and the
Rehabilitation Act. Hoyt v. St.Mary's Rehab. Ctr., 711 F.2d 864,
867 (8th Cir. 1983); Bane v. Virginia Dep't of Corr., No.
7:06CV00733, 2007 WL 1378523, at *9-10 (W.D.Va. May 8, 2007).
Title V of the ADA governs claims for retaliation. Title V states
in pertinent part: "[n]o person shall discriminate against any
individual because such individual has opposed any act or practice
made unlawful by this chapter or because such individual made a
charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this chapter." 42
U.S.C. ¤ 12203(a); see also 29 U.S.C. ¤ 794a(a)(2); 45 C.F.R. ¤
80.7(e). Under both the ADA and the Rehabilitation Act, the
elements of a prima facie case for retaliation are: (1) that
Plaintiff engaged in protected activity; (2) that her employer took
an adverse action against her; and (3) that a causal connection
existed between the adverse activity and the protected action.
Haulbrook v. Michelin North America, 252 F.3d 696, 706 (4th Cir.
2001); Bane, 2007 WL 1378523, at *9-10. Of course, at the motion
to dismiss stage, a plaintiff must plead adequately, but she is not
required to proffer evidence.
A request for a reasonable accommodation is a protected
activity under both the ADA and the Rehabilitation Act. Haulbrook,
252 F.3d at 706 n.3; Bivins v. Gonzales, No. CIV. CCB-05-0833, 2005
WL 2864746, at *4 (D.Md. Oct. 26, 2005). Similarly, declining to
return to work after being refused a reasonable accommodation is a
protected activity. See Peters v. Jenney, 327 F.3d 307, 320-21 (4th
The parties dispute whether Plaintiff has sufficiently alleged
that Defendants took an adverse action against her. In determining
whether the alleged retaliatory action is materially adverse as
required for the second element, the court should ask whether it
was harmful enough to have "dissuaded a reasonable worker from
making or supporting a charge of discrimination." Burlington
Northern & Santa Fe Ry. Co. v. White, 126 S.Ct. 2405, 2409 (2006).
Prior to Burlington Northern, the adverse action inquiry was tied
to whether the employment action affected the terms, conditions, or
benefits of employment. Although no longer determinative, the
effect of an employment action on terms, benefits, and conditions
of employment is still a relevant factor in weighing an action's
material adverseness. Even under the relaxed standard announced in
Burlington Northern, Plaintiff is still required to demonstrate
that the retaliatory conduct caused actual harm or injury. Id. at
2414; Moret v. Geren, 494 F.Supp.2d 329, 344 (D.Md. 2007).
Plaintiff alleges that after she requested an assignment to a
full-time position teaching high school art courses, Defendants
assigned her to a substitute-only position and refused to consider
her for a full-time high school position. Specifically, she
contends that Defendants assigned her to supervise students in ISR
in a converted storage closet where she could not take bathroom
breaks without bringing the students with her, and without planning
time; assigned her to teach middle school students as a substitute,
sometimes without breaks and without planning time; and on one
occasion assigned her to sit with no duties in the library for half
of a school day. As a result of these actions, Plaintiff claims to
have suffered the negative consequences of withheld back pay,
reduced present pay, and risks to her health. Defendants contend
that Plaintiff's allegations amount to mere inconveniences, not
adverse employment actions.
The Supreme Court recently held that reassignment of job
duties could qualify as an adverse employment action, depending on
the circumstances of the particular case. Burlington Northern, 126
S.Ct. at 2417 (noting that the EEOC has found "[r]etaliatory work
assignments' to be a classic and 'widely recognized' example of
'forbidden retaliation.'"); Toulan v. DAP Prods. Inc., Civ. No.
CCB-05-2254, 2007 WL 172522, at *9 (D.Md. Jan. 17, 2007). Whether
the reassignment of duties is an adverse employment action "should
be judged from the perspective of a reasonable person in the
plaintiff's position, considering 'all the circumstances.' Oncale
[v. Sundowner Offshore Servs. Inc.], 523 U.S. , 81, 118 S.Ct.
998." Burlington Northern, 126 S.Ct. at 2417. A reasonable
teacher would not likely find it materially adverse to be
reassigned as a substitute. The temporary assignment to ISR and
the half day spent in the library might have been boring or
inconvenient, but those assignments do not amount to materially
adverse employment actions. See Spriggs v. Pub. Serv. Comm'n of
Md., 197 F.Supp.2d 388, 393 (D.Md. 2002) (refusing to find a
materially adverse employment action where the plaintiff's new
duties resulted in merely "displeasure and inconvenience").
Failure to hire can be an adverse employment action. See,
e.g., Price v. Thompson, 380 F.3d 209, 212 (4th Cir. 2004). In the
context of a plaintiff seeking to switch to a lateral position
under the same employer, a failure to hire could be adverse where
the plaintiff's terms, conditions, or benefits of employment are
affected. See Albero v. City of Salisbury, 422 F.Supp.2d 549, 560-
61 (D.Md. 2006) (finding no adverse employment action where
plaintiff was not hired for alternative position, but the terms of
her employment were not adversely affected). Here, at the pleading
stage, Plaintiff has articulated sufficient adverse consequences.
The other alleged retaliatory conduct also satisfies the prima
facie standard. Plaintiff's allegations that Defendants withheld
her back pay and failed to pay her commensurate with her increased
hours qualify as adverse employment actions, as a loss of pay is
certainly a legally cognizable injury.
In her second amended complaint, Plaintiff contends that
Defendants took additional adverse employment action against her
when, in reaction to her refusal to return to work without the
promised wheelchair and permanent aide, they removed her from paid
leave and informed her that she would be charged personal and sick
leave for each day she failed to report to work. Further, they
would treat her absences as leave without pay once her sick leave
and personal leave were exhausted. Defendants' placement of
Plaintiff on leave of absence under these conditions certainly
affects the terms and benefits of Plaintiff's employment, as she
will no longer receive pay once she uses all of her paid leave.
Accordingly, Plaintiff has sufficiently alleged that Defendants
took an adverse employment action against her. See Allen, 273
F.Supp.2d at 705-06 (finding that a 10-day unpaid suspension was an
adverse action); Parkinson v. Anne Arundel Med. Ctr., Inc., 214
F.Supp.2d 511, 518 (D.Md. 2002) (noting that one-day, unpaid
suspension could qualify as an adverse employment action).
The third element of her prima facie case of retaliation, that
the adverse employment actions were causally connected to the
protected activity, also is alleged adequately. Regarding
Plaintiff's back pay claims, the only allegations of causation that
may be inferred from Plaintiff's complaint relate to the temporal
proximity of the adverse actions and the protected activity.
Temporal proximity is relevant to a determination of causation and
in some cases may be sufficient alone to satisfy the causation
inquiry. Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74
(2001) (noting that temporal proximity must be "very close" to be
sufficient evidence of causation). Plaintiff requested her
accommodation on October 24, 2006. In mid-January 2007, Defendants
informed her that two weeks of pay would be withheld. She began at
North Point High School on January 8, 2007, the first date she
would have been paid at the lower rate than she allegedly deserved.
The lapse of less than two months is sufficient evidence of
causation to satisfy the third prong of the prima facie case. See
Allen, 273 F.Supp.2d at 708 (finding that four months provided a
sufficient inference of causation).
Plaintiff has also sufficiently alleged a causal connection
between her refusal to return to work without the promised
accommodations and Defendants' placing her on unpaid leave. Here,
Defendants took action the same day that Plaintiff refused to
return to work. (Paper 44 ¦¦ 56, 57). This very close proximity
raises a strong inference of causation. Accordingly, the court
finds that Plaintiff has sufficiently alleged her retaliation
claims and Defendants' motion to dismiss Counts II and IV will be
denied. Further, as the allegations in Plaintiff's proposed second
amended complaint sufficiently state a retaliation claim,
Plaintiff's motion for leave to file second amended complaint will
D. Title I of the ADA: Count V
Defendants have moved to dismiss Count V, pursuant to
Fed.R.Civ.P. 12(b)(1). Defendants argue that the court lacks
subject matter jurisdiction over Plaintiff's Title I claim because
Plaintiff failed to file a complaint with the EEOC prior to filing
her original complaint, as required by 42 U.S.C. ¤ 2000e-5.
Plaintiff concedes that she filed her EEOC complaint on March 27,
2007, seven days after she filed her original complaint. She
contends that the procedural defect is cured, however, because she
received a right to sue letter on May 1, 2007, and subsequently
filed her amended complaint on May 4, 2007.
The court need not dismiss Count V on the basis of Plaintiff's
failure first to file a claim with the EEOC. As other courts in
this district have recognized, the later issuance of a right to sue
letter, coupled with the filing of an amended complaint cures any
procedural defect. Miller v. Baltimore Gas & Elec. Co., 202 F.R.D.
195, 204 (D.Md. 2001) (citing Henderson v. Eastern Freight Ways,
Inc., 460 F.2d 258, 260 (4th Cir. 1972)). Count V of the original
complaint was subject to dismissal prior to the filing of the
amended complaint, but "the issuance of the 'suit-letter' validated
the pending action." Henderson, 460 F.2d at 260.
E. Section 1983 Claims: Counts VI, VII, VIII5
Defendants contend that Plaintiff has failed sufficiently to
allege a violation of 42 U.S.C. ¤ 1983 in Counts VI, VII, and VIII.
The court agrees.
To state a ¤ 1983 claim, a plaintiff must allege: (1) that she
has been deprived of a right, privilege or immunity secured by the
Constitution or laws of the United States; and (2) that the conduct
complained of was committed by a person acting under the color of
state law. There is no question that Plaintiff alleges that Mr.
Richmond and Mr. Hettel were acting under color of state law. The
difficult issue for Plaintiff is whether she has, or can, allege
that she has been deprived of a right, privilege or immunity
secured by the Constitution or laws of the United States. A
plaintiff may not state a claim under 42 U.S.C. ¤¤ 1983 and 1985(3)
for rights created by the ADA. See Alsbrook v. City of Maumelle,
184 F.3d 999, 1012-12 (8th Cir. 1999) (en banc); Holbrook v. City
of Alpharetta, Georgia, 112 F.3d 1522, 1531 (11th Cir. 1997).
Plaintiff does not seek to do so. Rather, Plaintiff claims that
she had a constitutionally protected right and interest in and to
her employment, and that the withholding of her pay, and refusal to
assign her to a job comparable to the one she had before, as
alleged in counts VI and VII, violated her due process rights, and
that the assignment to substitute teaching positions without
additional pay or planning time, as alleged in count VIII, violated
the Equal Protection Clause.
Regarding Plaintiff's alleged denial of wages for the first
two weeks of January 2007, she has not specified whether she is
asserting a procedural or substantive due process claim, but in
either case, she must demonstrate that she had a protected property
interest. Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810,
827 (4th Cir. 1995) (holding that in order to make out a claim for
a violation of substantive due process, a plaintiff must show that
he possesses a cognizable property interest); Jenkins v.
Weatherholtz, 909 F.2d 105, 107 (4th Cir. 1990) (holding that a
plaintiff can only state a claim for a violation of procedural due
process where plaintiff has a constitutionally protected property
interest). It is well established that "[t]o have a property
interest in a benefit, a person clearly must have more than an
abstract need or desire for it. He must have more than a
unilateral expectation of it. He must, instead, have a legitimate
claim of entitlement to it." Board of Regents of State Colleges v.
Roth, 408 U.S. 564, 577 (1972). Moreover, "[t]he Constitution does
not create property interests; rather, such interests 'are created
and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state
law-rules or understandings that secure certain benefits and that
support claims of entitlement to those benefits.'" Start, Inc. v.
Baltimore County, Md., 295 F.Supp.2d 569, 584 (D.Md. 2003) (quoting
Roth, 408 U.S. at 577).
In her complaint, Plaintiff does not identify the source of
entitlement to her unpaid wages. She cites Cleveland Bd. of Educ.
v. Loudermill, 470 U.S. 532, 541 (1985) and Fields v. Durham, 909
F.2d 94, 98 (4th Cir. 1990), to establish that she has a
constitutionally protected fundamental right and interest in her
employment. (Paper 19, at 10). Those citations are inapposite,
however, because they only support the proposition that Plaintiff
may have a constitutional right in continued employment.
Defendants have not terminated Plaintiff, so Loudermill and Fields
do not control the case. Plaintiff must point to some "independent
source" that elevates her ordinary interest in unpaid wages to a
level that is constitutionally protected. Plaintiff has failed to
do so and therefore the court finds that her due process claim
related to the unpaid wages fails to allege a violation of the
Plaintiff also alleges that Defendants violated her liberty
interest when they filled vacant art teacher positions without
first providing her due process of law. When an individual seeks
employment, "[i]t is the impairment of the ability to take action
that is protected as a liberty interest." Bannum, Inc. v. Town of
Ashland, 922 F.2d 197, 201 (4th Cir. 1990). Bannum continued,
[t]hus, when a "person's good name,
reputation, honor, or integrity is at stake
because of what the government is doing to
him," a liberty interest is implicated.
Wisconsin v. Constantineau, 400 U.S. 433, 437,
91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971). The
mere denial of a business or employment
opportunity, without more, does not deprive a
person of a liberty interest, for the ability
to obtain future business or employment
opportunities is not jeopardized.
Id. Plaintiff does not allege that Defendants impugned her
reputation or imposed a stigma or disability on her "that
foreclosed [her] freedom to take advantage of other employment
opportunities." Roth, 408 U.S. at 573. Without more, Defendants'
decision to hire other applicants for the art teacher positions at
McDonough and Thomas Stone High Schools amounts to "a mere denial
of a business or employment opportunity," and does not rise to the
level of a constitutional violation. As the Supreme Court noted in
Roth, "[i]t stretches the concept too far to suggest that a person
is deprived of 'liberty' when he simply is not rehired in one job
but remains as free as before to seek another." Id. at 575.
Plaintiff's final Fourteenth Amendment argument also fails.
Plaintiff alleges that Defendants violated her equal protection
rights by "not affording her planning time at work or providing her
additional compensation for her additional teaching time as is
afforded or provided to all other teachers at North Point High
School." (Paper 10 ¦¦ 107, 108). "[E]qual protection is not a
license for courts to judge the wisdom, fairness, or logic of
legislative choices." FCC v. Beach Commc'ns, Inc., 508 U.S. 307,
313 (1993). When "governmental action [does] not burden a
fundamental right or employ a suspect classification, the pertinent
question for determining whether the governmental action violated
the Equal Protection Clause is whether the . . . officials
reasonably could have believed that the action was rationally
related to a legitimate governmental interest." Front Royal &
Warren County Indus. Park Corp. v. Town of Front Royal, 135 F.3d
275, 290 (4th Cir. 1998). The disabled are not a suspect class for
purposes of the Fourteenth Amendment, therefore Defendants' actions
are subject to rational basis scrutiny. See Garrett, 531 U.S. at
366. As the Supreme Court held in Beach Communications, "those
attacking the rationality of the legislative classification have
the burden to 'negative every conceivable basis which might support
it.'" 508 U.S. at 315; MBC Realty, LLC v. Mayor and City Council
of Baltimore, 351 F.Supp.2d 420, 424 (D.Md. 2005).
Taking Plaintiff's allegations as true, the court assumes that
Defendants denied Plaintiff planning time and the salary she
deserved. The court also assumes that Plaintiff is similarly
situated to other teachers at North Point High School. Plaintiff's
equal protection claim fails, however, as she has not alleged any
facts to establish that Defendants' actions were not related to a
legitimate governmental purpose. Plaintiff's only allegations
regarding Defendants' motives are mere "legal conclusions couched
as factual allegations" that Defendants denied her planning time
and additional pay because she was disabled. Papasan, 478 U.S. at
286. There are many conceivable legitimate reasons for Defendants'
actions, such as budget constraints and scheduling conflicts. With
her scant factual allegations, Plaintiff has failed to establish a
violation of her Fourteenth Amendment rights. Accordingly, the
court will dismiss Plaintiff's ¤ 1983 claims.
F. Maryland Wage Payment and Collection Law: Count IX
Plaintiff asserts that Defendants failed to pay her in
accordance with the Maryland Wage Payment and Collection Law
("MWPCL"), MD. CODE ANN., LAB. AND EMPL. ¤ 3-501, et seq., and made
illegal deductions of her pay in violation of ¤ 3-501. Defendants
counter that ¤ 3-501 does not apply to public school board
employers. Defendants cite two sections of the Education Article
that provide "[t]his subtitle does not make the State labor laws in
Title 3 and 7 of the Labor and Employment Article apply to public
school employment." MD. CODE ANN., EDUC. ¤ 6-411(b) ("Relationship
to other laws"), ¤ 6-514 ("Certain laws inapplicable"). Section 6-
411 is within Subtitle 4, "Organizations of Certificated Employees"
of Title 6, "Teachers and Other Personnel" of the Education
Article. Subtitle 4 governs the membership, designation,
representation and negotiation with organizations of certificated
employees of public school systems. Section 6-514 is in Title 6,
Subtitle 5, "Organizations of Noncertificated employees," which
governs similar issues as Subtitle 4, but for noncertificated
employees. Defendants argue that the language of the quoted
sections plainly indicates that the Maryland legislature did not
intend that ¤ 3-501 would apply to public school employers.
Defendants also point out that the definition of "employer" in
the "Wage Payment and Collection" subtitle of Title 3 of the Labor
and Employment Article does not include State entities. MD. CODE
ANN., LAB. AND EMPL. ¤ 3-501(b) ("Employer' includes any person who
employs an individual in the State or a successor of the person.").
By contrast, other definitions of "employer" within Title 3 include
public entities. See, e.g., ¤ 3-301(b)(1) ("Employer' means: (i)
a person engaged in a business, industry, profession, trade, or
other enterprise in the State; (ii) the State and its units; (iii)
a county and its units; and (iv) a municipal government in the
State.").6 Defendants assert that the legislature did not intend
that "person," as used in the definition of employer in ¤ 3-501(b),
would include the State or its instrumentalities. Otherwise, the
legislature would not have listed "the State and its units"
separately from "person" in ¤ 3-301(b)(1) and ¤ 3-801(b).
Plaintiff contends that the definition of "person" in the
Labor and Employment Article, which is to apply to all sections
within the Article, demonstrates that ¤ 3-501's definition of
"employer" includes the Board. MD. CODE ANN., LAB. AND EMPL. ¤ 1-
101(d) ("Person' means an individual, receiver, trustee, guardian,
personal representative, fiduciary, or representative of any kind
and any partnership, firm, association, corporation, or other
entity."). Plaintiff reasons that the Board would fall within the
"corporation, or other entity" category. Plaintiff's argument is
undermined by the fact that the statute defines "governmental unit"
in addition to "person" in ¤ 1-101(b) ("Governmental Unit' means
(1) the State; (2) a county, municipal corporation, or other
political subdivision of the State; or (3) a unit of the State
government or of a political subdivision"). While it is possible
that a governmental unit could be considered an "entity" in the
"person" definition, it is more likely that the legislature would
have explicitly included the term "governmental unit" within the
definition of "person," had it intended to include State employers.
The court agrees with Defendants' statutory interpretation.
The language in ¤ 6-411(b) plainly indicates that ¤ 3-501 does not
apply to public education employers. The other statutory language
in the Labor and Employment Article supports the argument that
public education employers, if not all governmental employers, are
excluded from ¤ 3-501.7 Plaintiff has not presented any persuasive
argument to show how the court could apply ¤ 3-501 without acting
in conflict with ¤ 6-411. Therefore, Plaintiff's MWPCL claim in
Count IX will be dismissed.
IV. Motion for Leave to File Surreply
Local Rule 105.2.a provides, "[u]nless otherwise ordered by
the Court, surreply memoranda are not permitted to be filed." The
court may permit a surreply when a party would not otherwise have
an opportunity to respond to arguments raised for the first time in
the opposing party's reply. Khoury v. Meserve, 268 F.Supp.2d 600,
605 (D.Md. 2003). Plaintiff seeks leave to file a surreply because
she claims that Defendants presented new arguments and misconstrued
Plaintiff's voluntary dismissal of the Board as to her ¤ 1983
claims. The motion will be denied, as the court understood that
Plaintiff only dismissed her ¤ 1983 claims as to the Board.
Further, Defendants did not raise new arguments in their Reply, but
rather merely responded to Plaintiff's arguments.
For the foregoing reasons, Defendants' motion to dismiss will
be granted in part and denied in part, Plaintiff's motion for leave
to file second amended complaint will be granted, and Plaintiff's
motion for leave to file surreply will be denied. A separate order
DEBORAH K. CHASANOW
United States District Judge
1In her Amended Complaint (paper 10), Plaintiff states that she "volunteers" her physician's letter. Presumably she means "offers," as the statement of facts indicates that she did not deliver the letter until approximately one week later.
2Plaintiff's complaints do not identify specific employment actions that she contends are retaliatory. Instead, she puts forth a chronological list of events in the beginning of the complaints and then generally alleges that the conduct constitutes retaliation. Thus, the analysis of the retaliation claim or claims is difficult. Plaintiff's listing of events in her opposition to the motion to dismiss merely reiterates the events set forth in the complaint.
3For the RA and ADA claims, Plaintiff sued the individuals only in their official capacities. (Paper 10 ¦¦ 5, 6). Suits against individuals in their official capacity are merely alternative means of suing the entity for whom they work. Where, as here, the entity itself is sued, such actions are redundant.
4Plaintiff does not argue that, if there is either no proper allegation of loss of employment, or there is no fundamental right to employment, Congress nevertheless validly abrogated sovereign immunity for some less all encompassing aspect of this case.
5Although the Amended Complaint names the Charles County Board of Education, along with Mr. Richmond and Mr. Hettel in their individual capacities, Plaintiff filed a notice of voluntary dismissal of these counts against the Board. (Paper 18).
6Title II states that no qualified individual with a disability shall "be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity." 42 U.S.C. ¤ 12132. The federal courts are currently divided over whether Title II creates a cause of action for employment discrimination. See Lex K. Larson, Employment Discrimination ¤ 152. 04[c] (2d ed.). The United States Court of Appeals for the Fourth Circuit has assumed that Title II can be used for employment discrimination claims without expressly analyzing the issue. Id. (citing Rogers v. Dep't of Health & Env't Control, 174 F.3d 431 (4th Cir. 1999)(deciding on the merits a Title II claim against the State in its capacity as an employer)). Therefore, this Court also assumes, without deciding, that Title II is available for employment dscrimination claims.
6See also MD. CODE ANN., LAB. AND EMPL. ¤ 3-801 ("Employer, defined"). Section 3-801 first provides, "(a) [i]n this subtitle, "employer" means a person engaged in a business, industry, profession, trade, or other enterprise in the State." In subsection (b), the statute clarifies that "[e]mployer' includes: (1) a unit of State or local government that employs individuals who are not subject to the provisions of Title 9, Subtitle 5 of the State Personnel and Pensions Article; and (2) a person who acts directly or indirectly in the interest of another employer with an employee."
7The court need not decide whether ¤ 3-501 covers other State employers, although at least one other court has suggested that public employers are exempt. See Burkett v. Wicomico County, No. Civ. JFM-05-896, 2006 WL 827381, at *5 n.2 (D.Md. Mar. 24,2006) (declining to decide whether ¤ 3-501 applied to governmental employers, but noting in a footnote that "this argument appears meritorious").
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