Walker v. Maryland Department of Information and Technology

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

DONNA WALKER *

* Civil Action No. CCB-20-219

v. *

*

MARYLAND DEPARTMENT OF *

INFORMATION AND TECHNOLOGY *

*

MEMORANDUM

This civil rights action involves a dispute between Donna Walker and her employer, the

Maryland Department of Information and Technology (the “Department”), over an alleged

failure to make reasonable workplace accommodations. Before the court is the Department’s

motion to dismiss (ECF 11). The matter has been fully briefed and no oral argument is

necessary. See Local Rule 105(6). For the reasons discussed herein, the motion will be granted

in part and denied in part.

FACTS AND PROCEDURAL HISTORY

Donna Walker is employed at the Maryland Department of Information and Technology.

(ECF 1, Compl., ¶¶ 4–5, 7). Her job title is “webmaster supervisor,” though she states her duties

are non-supervisory and the same as the other webmasters. (Id. ¶ 4). Walker is a black female

who suffers from chronic migraine headaches which, during a migraine episode, interfere with

her ability to eat, to see in natural light, and to drive an automobile. (Id. ¶¶ 7–8).

In April of 2016, following her diagnosis, Walker requested, as reasonable

accommodations, permission to telework two days a week as needed, a permanent laptop

computer for use when working at home, and excusal from staff meetings during a migraine

episode. (Id. ¶ 9). At the time, the Department’s written telework policy stated that teleworking

was encouraged for all employees for up to four days a month, either at home or at a satellite

office. (Id. ¶ 10). Her supervisor, Anthony Burrows, and her manager, Lan Pasek, denied

Walker’s request on May 11, 2016, because Walker was a “mission critical” employee needed in

the office at all times.1 (Id. ¶ 11). They proposed different accommodations contrary to

Walker’s physician’s recommendations: permitting telework only if Walker used a loaner laptop

and provided twenty-four hours advance notice to Burrows, and reducing visits to her clients’

offices. (Id. ¶ 12). According to Walker, these accommodations were not acceptable. (Id. ¶ 14).

Since she could not predict the onset of a migraine a day in advance, she would be unable to

obtain access to a loaner laptop or to obtain prior approval to work from home. (Id. ¶ 14).

Additionally, reducing the number of meetings with clients was not necessary because her

clients’ offices were closer to her home than her workplace. (Id. ¶ 14).

Without reasonable accommodations, Walker states that she was forced to use episodic

sick or annual leave under the Family and Medical Leave Act. (Id. ¶ 18). Walker alleges that

her colleagues outside of her protected classes were allowed to telework without prior approval

and to have permanently assigned computers, even though they did not submit medical

documentation to support their need for telework as Walker had. (Id. ¶ 15). Walker provides the

following comparators: “Courtney Stewart (Caucasian, no disability), David Meyers (Caucasian,

male, no disability), Jeffrey Keller (Caucasian, male, no disability), Hong Xia (Asian, no

disability), and Anne Moore (no disability),” all of whom Walker believes had no prior protected

activity, and all of whom worked “in the same or similar positions” as Walker. (Id.)

1 Prior to this dispute, in June of 2015 and on September 30, 2015, Walker filed race discrimination and retaliation

charges against Burrows and Pasek with the EOOC. (ECF 1, Compl., ¶ 13). The substance of those charges is not

at issue here, though Walker alleges she had previously been permitted to telework on the same terms as her co-

workers, and lost her telework privileges due to discrimination, which it appears was alleged in those prior EEOC

complaints. (Id. ¶ 16).

Walker filed an EEOC charge against the Department in December of 2016, alleging

discrimination on the basis of race, sex, and disability; failure to accommodate; hostile work

environment; and retaliation. (Id. ¶ 17). In March of 2017, while her December 2016 EOOC

Charge was still pending, Walker filed with the Department a second reasonable accommodation

request and an internal discrimination and retaliation complaint. (Id. ¶ 18). The request was

denied, and the complaint was dismissed on or about March 15, 2017. (Id. ¶ 19). Walker

appealed the dismissal to the Department’s EEO coordinator, who denied the appeal. (Id. ¶¶ 19–

20).

On June 5, 2019, the EEOC issued a finding of reasonable cause that the Department

subjected Walker to unequal terms and conditions of employment in violation of Title VII’s

retaliation provisions and the ADA’s failure to accommodate provisions. (ECF 1-2, Ex. A,

EEOC Determination, at 2–3). The EEOC then issued Walker a notice of her right to sue on

October 28, 2019. (ECF 1-3, Ex. B, Right to Sue Letter).

Walker brought this action on January 24, 2020, seeking damages in excess of $100,000

and alleging four counts: (1) race and sex discrimination in violation of Title VII of the Civil

Rights Act of 1964 (“Title VII”); (2) retaliation in violation of Title VII; (3) discrimination and

retaliation under the Americans with Disabilities Act Amendments Act (“ADAAA”) and the

Rehabilitation Act; and (4) failure to accommodate under the ADAAA and the Rehabilitation

Act. (ECF 1 at 8, 9, 11).

STANDARD OF REVIEW

To survive a motion to dismiss, the factual allegations of a complaint “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).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

(2007) (citations omitted). “To satisfy this standard, a plaintiff need not ‘forecast’ evidence

sufficient to prove the elements of the claim. However, the complaint must allege sufficient

facts to establish those elements.” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012)

(citation omitted). “Thus, while a plaintiff does not need to demonstrate in a complaint that the

right to relief is ‘probable,’ the complaint must advance the plaintiff’s claim ‘across the line from

conceivable to plausible.’” 2 Id. (quoting Twombly, 550 U.S. at 570). Additionally, although

courts “must view the facts alleged in the light most favorable to the plaintiff,” they “will not

accept ‘legal conclusions couched as facts or unwarranted inferences, unreasonable conclusions,

or arguments’” in deciding whether a case should survive a motion to dismiss. U.S. ex rel.

Nathan v. Takeda Pharm. North Am., Inc., 707 F.3d 451, 455 (4th Cir. 2013) (quoting Wag More

Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012)).

DISCUSSION

I. Title VII Claims

Title VII makes it illegal for an employer “to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). Further, Title

VII makes it unlawful for an employer to retaliate against an employee because the employee

“has opposed any practice made an unlawful employment practice” under Title VII, or because

the employee “has made a charge, testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing” pursuant to Title VII. 42 U.S.C. § 2000e-3(a). In Counts I

2 The Fourth Circuit Court of Appeals has clarified that plaintiffs are not required to plead facts sufficient to

establish a prima facie case to survive a motion to dismiss. See Bing v. Brivo Sys., LLC, 959 F.3d 605, 616 (4th Cir.

2020). This is because a prima facie case is an evidentiary standard rather than a pleading standard. Id. Therefore,

plaintiffs are required only to allege facts to plausibly satisfy the elements of a cause of action created by the

relevant statute. Id.

and II, Walker alleges that the Department violated both of these provisions. The court will

evaluate each in turn.

A. Discrimination

To state a claim for discrimination under Title VII, a plaintiff must plausibly allege: (1)

membership in a protected class; (2) satisfactory job performance; (3) an adverse employment

action; and (4) different treatment from similarly situated employees outside the protected class.

Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff’d sub nom. Coleman v.

Court of Appeals of Md., 566 U.S. 30 (2012).

In this case, Walker argues that the Department discriminated against her on the basis of

her race and her sex by denying her “the same opportunities as her white and/or male co-workers

to telework” or to “work in Defendant’s satellite office” and to “have a permanently assigned

laptop.” (ECF 1 ¶¶ 30, 32). In response, the Department contends that Walker fails to (1) allege

an adverse employment action; (2) allege any named individuals are similarly situated

comparators; (3) identify any actual comparators who have been treated differently; or (4) allege

that any specific action was taken or not taken on the basis of Walker’s race or sex. (ECF 11-1,

Mot. to Dismiss, at 12). The court agrees that Walker has failed to properly plead either an

adverse employment action or different treatment.

For the purposes of a Title VII discrimination claim, an adverse employment action is

one that adversely “affect[s] employment or alter[s] the conditions of the workplace.”

Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 62 (2006); see also Laird v. Fairfax

Cty., Va., --- F.3d ---, No. 18-2511, 2020 WL 6228005, at *4 (4th Cir. Oct. 23, 2020). In other

words, it is a discriminatory act that “adversely affect[s] the terms, conditions, or benefits of the

plaintiff’s employment.” Holland v. Wash. Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007).

Typical adverse employment actions are “discharge, demotion, decrease in pay or benefits, loss

of job title or supervisory responsibilities, or reduced opportunities for promotion.” Boone v.

Goldin, 178 F.3d 253, 255 (4th Cir. 1999). Nevertheless, even where an employer’s conduct

does not amount to an ultimate employment action, it may nonetheless be sufficiently adverse if

it plausibly had a tangible effect on the terms and conditions of employment. Thorn v. Sebelius,

766 F. Supp. 2d 585, 598 (D. Md. 2011), aff’d, 465 F. App’x 274 (4th Cir. 2012). Still, as courts

in this circuit have frequently held, an employer’s refusal to allow a flex schedule or telework

arrangement, without more, does not rise to the level of an adverse employment action. See

Terry v. Perdue, No. JKB-18-31, 2018 WL 4494883, at *5 (D. Md. Sept. 19, 2018) (collecting

cases); see also Parsons v. Wynne, 221 F. App’x 197, 198 (4th Cir. 2007) (removal from an

alternate work schedule was not adverse action); Lee v. Mattiss, No. PX-17-2836, 2018 WL

3439261, at *9 (D. Md. July 17, 2018) (noting that “mere refusal to allow telecommuting is not

actionable under Title VII” but holding that denial of telecommuting in addition to allegations of

excessive criticism, disparate assignment of overtime work, and denial of leave constituted

adverse employment action); Dailey v. Lew, No. GLR-15-2527, 2016 WL 1558150, at *5–6 (D.

Md. Apr. 18, 2016) (no adverse action where defendant suspended plaintiff’s telework

arrangement), aff’d, 670 F. App’x 142 (4th Cir. 2016); Carter v. Va. Dep’t of Game & Inland

Fisheries, No. MHL-16-0661, 2017 WL 4413192, at *13 (E.D. Va. Sept. 29, 2017) (no adverse

action where employer refused to allow a flex schedule or telecommuting).3

Walker has failed to adequately plead an adverse employment action for the purposes of

her Title VII discrimination claim. While Walker was denied not just a telework arrangement,

but also the permanent use of a laptop and the ability to work from a satellite office, these actions

3 Unpublished opinions are cited for the soundness of their reasoning rather than for their precedential value.

are incidental to the denial of teleworking and therefore do not rise to the level of an adverse

employment action. And though Walker alleges she was forced to use sick leave and take leave

without pay, and that she had received fewer assignments and clients than her co-workers, her

complaint indicates that these were concomitant effects of the denial of teleworking privileges

rather than independent acts of her employer. (See ECF 1 ¶ 18 (“As a result of Defendant’s

unlawful actions, Plaintiff was forced to take episodic leave.”); id. ¶ 30 (“Defendant’s unlawful

conduct . . . caused her to have fewer assignments and clients than her co-workers.”)).4 Further,

as the Department’s then-existing policy was to encourage teleworking, (id. ¶ 10), the denial of

such privileges does not appear to have had an adverse effect on the terms or conditions of her

employment. Holland, 487 F.3d at 219.

Additionally, to state a claim for discrimination under Title VII, “a plaintiff who bases

her allegations entirely upon a comparison to an employee from a non-protected class must

demonstrate that the comparator was similarly situated in all relevant aspects.” Sawyers v.

United Parcel Service, 946 F. Supp. 2d 432, 442 n.10 (D. Md. 2013) (internal quotation

omitted); see also Haywood v. Locke, 387 F. App’x 355, 359 (4th Cir. 2010). A showing of

similarity “would include evidence that the employees ‘dealt with the same supervisor, [were]

subject to the same standards and . . . engaged in the same conduct without such differentiating

or mitigating circumstances that would distinguish their conduct or the employer’s treatment of

them for it.’” Haywood, 387 F. App’x at 359 (quoting Mitchell v. Toledo Hosp., 964 F.2d 577,

4 Walker cites Lee v. Mattis, No. PX-17-2836, 2018 WL 3439261 (D. Md. July 27, 2018) for the proposition that

restricting telework privileges in such a way as to cause a loss of wages, accrued leave, and work assignments is

sufficient to show a materially adverse action. (ECF 14 at 13). But the plaintiff in that case “avers much more,”

specifically that there was (1) excessive micromanagement, (2) excessive criticism, (3) an unreasonable workload,

(4) disparate assignment of overtime work, and (5) denial of leave. Lee, 2018 WL 3439261, at *9. Further, the

plaintiff in Lee did not allege, as Walker appears to, that the loss of telework caused these other injuries, but rather

that all of those discrete injuries collectively constituted an adverse employment action.

583 (6th Cir. 1992). Comparators need not be identical, though they must be similar in all

relevant aspects, including conduct, performance, and qualifications. Id.

Walker has also failed to adequately plead that she was similarly situated in all relevant

aspects to her comparators. Her complaint lists five purported comparators, along with a

parenthetical description of an inconsistent combination of the comparator’s race, sex, and

disability: two are white males without disabilities; one is white without a disability, but no sex

is listed; one is Asian without a disability, but no sex is listed; and one has no disability, but no

race nor sex is listed. (See ECF 1 ¶ 15). As Walker alleges she is a black female who has been

discriminated against on the basis of her race and her sex, only the two white males lie entirely

outside of her protected classes. (Id. ¶¶ 7, 29). Significantly, her complaint alleges only that the

Department—and not Burrows, her supervisor—was responsible for “allow[ing] [her] colleagues

. . . to telework and to have permanently assigned computers.” See Forrest v. Transit Mgmt. of

Charlotte, Inc., 245 F. App’x 255, 257 (4th Cir. 2007) (“If different decision-makers are

involved, employees are generally not similarly situated.”); see also Williams v. Silver Spring

Volunteer Fire Dep’t, 86 F. Supp. 3d 398, 420 (D. Md. 2015) (holding that plaintiff had failed to

adduce evidence to survive summary judgment because she had not, among other things, “shown

that any comparators were supervised by the same supervisor”). Nor is it clear from the

complaint which of the alleged comparators held Walker’s position of webmaster supervisor,

since the complaint only generally alleges that the comparators “worked in the same or similar

positions.” (ECF 1 ¶ 15). Finally, Walker does not assert that the two white male comparators

listed in her complaint were also designated “mission critical,” which was the Department’s

stated rationale for denying her telework privileges. See Haywood, 387 F. App’x at 359 (noting

that substantial similarity may be shown by evidence that employees were subject to the same

standards without “differentiating” circumstances that would distinguish “the employer’s

treatment of them for it.”).

Therefore, the court does not find that Walker has plausibly alleged she was treated

differently from her comparators on account of her race or her sex. Accordingly, her Title VII

discrimination claim will be dismissed.

B. Retaliation

To state a claim for retaliation under Title VII, the plaintiff must plausibly allege that: (1)

she engaged in a protected activity; (2) her employer took an adverse action against her; and (3)

a causal relationship existed between the protected activity and the adverse employment activity.

Foster v. Univ. of Md.-Eastern Shore, 787 F.3d 243, 250 (4th Cir. 2015). Here, the Department

argues that Walker’s complaint is deficient in alleging each of these elements. (See ECF 11-1 at

19–23). The court disagrees.

Protected activities may be classified as “participation” or “opposition.” 42 U.S.C. §

2000e-3(a). Participation includes making a formal EEOC charge. Id. Making use of informal

grievance procedures and speaking up against an employer’s discriminatory activity are

examples of “opposition.” See Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 259

(4th Cir. 1998) (“Opposition activity encompasses utilizing informal grievance procedures . . .

and voicing one’s opinions in order to bring attention to an employer’s discriminatory

activities.”). Walker clearly alleges that she engaged in protected activity insofar as she filed an

EEOC charge in 2016 alleging “discrimination based on race, sex and disability,” and an

“internal discrimination and retaliation complaint” in 2017. (ECF 1 ¶¶ 13, 17, 18).5

5 The Department asserts that only the EEOC charge could constitute protected activity, as “[b]ased upon the context

of the allegation, [the internal complaint] appears to only relate to her disability, which is not made unlawful by Title

VII.” But at the motion to dismiss stage, the court is required to construe the complaint in the light most favorable

Though Walker did not adequately allege an adverse action for the purposes of her

discrimination claim, “what qualifies as an ‘adverse action’ differs slightly” for a retaliation

claim. Laird, 2020 WL 6228005, at *4. In the context of a retaliation claim, a plaintiff can

demonstrate that an employer acted adversely by showing that “a reasonable employee would

have found the challenged action materially adverse, which in this context means it well might

have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

Burlington, 548 U.S. at 68 (internal quotation marks and citations omitted); see also Laird, 2020

WL 6228005, at *4. Whether an action is materially adverse “depends upon the circumstances

of the particular case, and should be judged from the perspective of a reasonable person in the

plaintiff’s position, considering all the circumstances.” Burlington, 548 U.S. at 71; see also

Bacchus v. Price, No. GJH-17-1511, 2018 WL 3575055, at *9–10 (D. Md. July 25, 2018)

(holding that denial of telework, under circumstances forcing the plaintiff to use accrued leave

and adhere to a rigid work schedule where others were routinely granted accommodations, was

sufficient to plead a materially adverse action); Terry v. Perdue, 2018 WL 4494883, at *6

(holding that cancelling Mondays off and denying a request for a flexible schedule would be

sufficient to dissuade a reasonable worker from making a discrimination charge).

In this case, Walker has alleged that she was (1) denied the opportunity to work from

home, (2) given “disparate work assignments,” and (3) excluded from meetings. (ECF 1 ¶ 39).

As in Bacchus, Walker’s allegations “set[] forth a scenario” where a supervisor forced a plaintiff

to “adhere to a rigid work schedule while others were routinely granted accommodations.”

Bacchus, 2018 WL 3575055, at *10. As the Supreme Court stated in Burlington, “[a] schedule

change in an employee’s work schedule may make little difference to many workers, but may

to the plaintiff, and therefore the court will assume for the purposes of resolving this motion that Walker’s internal

complaint grieved activity made unlawful under Title VII and thus that it constitutes protected activity.

matter enormously to a young mother with school-age children.” 548 U.S. at 69. For a

reasonable person in Walker’s position, suffering from chronic migraines that make driving a car

untenable, the denial of telework may likewise “matter enormously.” At this stage, the court

accepts that it is plausible that the denial of telework is a materially adverse employment action

capable of deterring a reasonable employee from making a charge of discrimination.

Finally, a plaintiff must plead that his or her protected activity constituted the “but-for”

cause of the materially adverse employment action taken by the employer. Univ. of Texas

Southwestern Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013). Temporal proximity between the

protected activity and the adverse employment action can show a causal link: “Although we have

not drawn a bright temporal line, we have observed that two and a half months between the

protected activity and the adverse action is ‘sufficiently long so as to weaken significantly the

inference of causation between the two events’ in the absence of other evidence of retaliation.”

Wilcox v. Lyons, 970 F.3d 452, 457 (4th Cir. 2020) (quoting King v. Rumsfeld, 328 F.3d 145, 151

n.5 (4th Cir. 2003)); see also Foster, 787 F.3d at 253 (complaint of discrimination one month

before termination was sufficient to create jury question regarding causation).

Here, Walker alleges that she engaged in a few instances of protected activity. First, in

December of 2016 Walker filed an EEOC charge alleging discrimination on the basis of race,

sex, and disability. (ECF 1 ¶ 17). This was followed by an “internal discrimination and

retaliation complaint” which she filed in March of 2017. (Id. ¶ 18). Subsequently, “[o]n or

about March 15, 2017,” her accommodation request was denied by the Department. (Id. ¶ 19).

Therefore, assuming Walker’s EEOC charge, which alleged discrimination made unlawful by

Title VII, was filed at the end of December, the period from the filing of the charge to the denial

of her request was just two-and-a-half months. Additionally, her internal grievance was filed

within, at most, a few weeks of the denial of her request. Though her complaint is unclear as to

whether the internal grievance alleged discrimination on the basis of sex and race or just

disability, the court must construe the complaint in the light most favorable to Walker and will

therefore assume it grieved actions made unlawful by Title VII, just as the EEOC charge did a

few months prior. Accordingly, Walker has sufficiently alleged causation by pointing to the

close temporal proximity between (1) her EEOC Charge and the denial of her request for

accommodations and (2) her internal grievance and the denial of her request for

accommodations.

In sum, Walker has plausibly alleged that she engaged in protected activity, she suffered

an adverse employment decision, and there was a causal nexus between the two. As a result, she

has stated a Title VII retaliation claim, and the court will deny the Department’s motion to

dismiss as to that claim.

II. Rehabilitation Act Claims

The Rehabilitation Act aims to ensure that no disabled person “shall, solely by reason of

her or his disability, be excluded from the participation in, be denied the benefits of, or be

subjected to discrimination under any program or activity receiving Federal financial assistance.”

29 U.S.C. § 794(a). The Rehabilitation Act also incorporates the ADAAA’s anti-retaliation

provision, which prohibits “discrimination against any individual because she has opposed any

act or practice made unlawful by” the ADAAA. 42 U.S.C. § 12203(a). Courts evaluate

employment discrimination claims brought under the Rehabilitation Act using the same

standards as those applied under Title I of the ADA. Reyazuddin v. Montgomery Cty., Md., 789

F.3d 407, 413 (4th Cir. 2015). In Counts III and IV, Walker asserts claims under the

Rehabilitation Act for discrimination, retaliation, and failure to accommodate. The court will

address each in turn.

A. Discrimination

To state a claim for discrimination under the Rehabilitation Act, a plaintiff must allege:

(1) she has a disability; (2) she is otherwise qualified for her employment; and (3) she suffered

an adverse employment action solely by reason of her disability. Jacobs v. N.C. Admin. Office of

the Courts, 780 F.3d 562, 572 (4th Cir. 2015).

In this case, the Department challenges only the third element, and questions whether the

stated employment action is sufficiently adverse. (See ECF 11-1 at 27). For the reasons

described herein with regard to Walker’s discrimination claim under Title VII, the adverse

employment action alleged with regard to her discrimination claim under the Rehabilitation Act

is likewise insufficient. Accordingly, the court will grant the Department’s motion to dismiss as

to Walker’s discrimination claim under the Rehabilitation Act.

B. Retaliation

To state a claim for retaliation under the Rehabilitation Act, a plaintiff must allege that:

(1) she engaged in a protected activity; (2) the defendant took an adverse action against her; and

(3) a causal connection exists between the protected activity and the adverse action. See A

Society Without a Name v. Virginia, 655 F.3d 342, 350 (4th Cir. 2011) (stating the standard for

retaliation under the ADAAA); see also Hooven-Lewis v. Caldera, 249 F.3d 259, 272 (4th Cir.

2001) (outlining the same standard for retaliation under the Rehabilitation Act).

In this case, the Department contends that Walker does not sufficiently allege the second

and third elements. (See ECF 11-1 at 28). With regard to the second element, as explained

above, the court accepts that it is plausible that the denial of telework is a materially adverse

employment action capable of deterring a reasonable employee from making a charge of

discrimination. With regard to the third element, as also explained above, Walker’s EEOC

charge alleged discrimination on the basis of disability and, though her complaint is somewhat

ambiguous on this point, the court will assume that Walker’s internal grievance referenced

activity made illegal under the ADAAA and the Rehabilitation Act. Because both of those

protected activities came within two and a half months of the alleged adverse action (and

because one of them came within weeks of the adverse action), Walker has sufficiently alleged a

causal nexus. Accordingly, she has stated a claim for retaliation under the Rehabilitation Act

and the court will deny the Department’s motion as to this claim.

C. Failure to Accommodate

To state a claim for failure to accommodate under the Rehabilitation Act, a plaintiff must

allege: (1) she was a qualified person with a disability; (2) the employer had notice of her

disability; (3) the plaintiff could perform the essential functions of her position with a reasonable

accommodation; and (4) the employer nonetheless refused to make the accommodation. Hannah

P. v. Coats, 916 F.3d 327, 337 (4th Cir. 2019).

In this case, the Department appears to contest only the third and fourth elements,

primarily on the grounds that “Walker has acknowledged that the Department provided

reasonable accommodations.” (ECF 11-1 at 29–30). While Walker did acknowledge that the

Department “proposed different accommodations than [her] physician” proposed, she also

alleged that the Department’s proposed accommodations “could not address her disability.”

(ECF 1 ¶¶ 12, 14).

Construed in the light most favorable to her, Walker has sufficiently alleged a failure to

accommodate under the Rehabilitation Act. Specifically, she alleges that her disability gives her

nausea, induces vomiting, and causes an extreme sensitivity to light such that she is unable to see

in sunlight or to drive a car; that she notified her employer of this disability as early as April of

2016; that she requested reasonable accommodations and supplied supporting medical

documentation; that she was ready and able to telework from home; and that the Department

refused to grant her the requested accommodations, refused to engage in the interactive process,

and instead proposed inadequate accommodations. (ECF 1 ¶¶ 8, 9, 24, 47, 48). Thus, it appears

that Walker has alleged that she could perform the essential functions of her position with the

requested accommodations and that the Department nevertheless refused to make the

accommodations.6

Accordingly, the court will deny the Department’s motion to dismiss as to Walker’s

claim under the Rehabilitation Act for failure to accommodate.

III. ADAAA Claims

The Eleventh Amendment establishes that states may not be sued by private individuals

in federal court except in two situations: after consent by the state, or under an abrogation of

state sovereign immunity by Congress acting pursuant to a valid exercise of its power. Bd. of

Trustees of Univ. of Al. v. Garrett, 531 U.S. 356, 363–64 (2001); see also McCray v. Md. Dep’t

of Transp., 741 F.3d 480, 483 (4th Cir. 2014). This protection extends to state agencies. See

Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997).

In this case, the Department is a “principal department of State government” and is

therefore entitled as an arm of the state to claim immunity. Md. Code. Ann., State Fin. & Proc. §

6 The Department also contends that the failure to accommodate claim is deficient because the complaint fails,

among other things, to state that the accommodations were necessary or to identify the essential functions of her job.

(See ECF 11-1 at 30). Given Walker’s allegations that the incidence of a migraine for her causes an inability to

commute to her job, Walker has stated that accommodations were necessary. And as explained previously, Walker

need only plead facts sufficient to state a plausible claim for relief. This much she has done.

3A-201. Walker does not argue, nor is it apparent to the court from its own research, that

Maryland or the Department has waived immunity for actions arising under the federal

employment laws.7 Therefore, Walker’s claims under the ADAAA will be barred so long as

Congress has not abrogated immunity. The Department contends—and Walker does not appear

to contest—that Congress has not done so. (See ECF 11-1 at 24; see generally ECF 14, Pl.’s

Opp. to Mot. to Dismiss).

The ADAAA does purport to abrogate state sovereign immunity. See 42 U.S.C. § 12202

(“A State shall not be immune under the eleventh amendment . . . from an action in Federal or

State court . . . for a violation of this chapter.”). Nevertheless, the Supreme Court has decided

that this was not a valid exercise of Congressional power, and that sovereign immunity has not

been abrogated for claims brought under Title I of the ADA,8 because “[t]he legislative record of

the ADA . . . simply fails to show that Congress did in fact identify a pattern of irrational state

discrimination in employment against the disabled.” See Garrett, 531 U.S. at 368, 374; see also

McCray, 741 F.3d at 483. Nor did Congress properly abrogate immunity for claims brought

under Title V of the ADA. See Demshki v. Monteith, 255 F.3d 986, 988–89 (9th Cir. 2001)

(“There is nothing in the ADA’s legislative findings demonstrating a pattern of discrimination by

states against employees who oppose unlawful employment discrimination against the disabled,”

7 This is so notwithstanding Maryland’s waiver of state sovereign immunity in employment discrimination cases,

which forbids the state or its officers from “rais[ing] sovereign immunity as a defense against an award in an

employment discrimination case under this title.” Md. Ann. Code, State Govt., 20-903 (emphasis added).

8 Walker alleges generally that the Department’s actions are in violation of the ADAAA. The court assumes, given

the gravamen or her allegations, that Title I (Employment) and Title V (Miscellaneous Provisions) are the governing

provisions, rather than Title II (Public Services), Title III (Public Accommodations), or Title IV

(Telecommunications). The court also notes that although Garrett was decided before Congress passed the

ADAAA and the President signed it into law, the act’s legislative findings do not mention Garrett or the states’

Eleventh Amendment immunity, and Congress has not remedied the deficiencies identified in Garrett with respect

to developing a record of irrational state discrimination against the disabled. Accord O’Donnell v. Pa. Dep’t of

Corr., 790 F. Supp. 2d 289, 297 n.9 (M.D. Pa. 2011).

without which “Congress may not abrogate the states’ Eleventh Amendment immunity from

Title V claims.”).

Accordingly, the court will dismiss Walker’s ADAAA claims.

CONCLUSION

For the reasons stated herein, the Department’s motion to dismiss will be granted in part

and denied in part. Walker’s Title VII discrimination claim, Rehabilitation Act discrimination

claim, and ADAAA claims will be dismissed, and Walker’s retaliation claim under Title VII and

her retaliation and failure to accommodate claims under the Rehabilitation Act may proceed. A

separate order follows.

11/2/20 /S/

Date Catherine C. Blake

United States District Judge