Williams v. Morgan State University

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

MICHELE WILLIAMS,

Plaintiff,

v. Civil Action No.: GLR-19-5

MORGAN STATE UNIVERSITY, et al.,

Defendants.

MEMORANDUM OPINION

THIS MATTER is before the Court on Defendants Morgan State University

(“Morgan State”) and DeWayne Wickham’s Motion to Dismiss or, in the Alternative, for

Summary Judgment (ECF No. 5), on remand pursuant to the judgment of the United States

Court of Appeals for the Fourth Circuit (ECF Nos. 30, 31). The Motion is ripe for

disposition, and no hearing is necessary. See Local Rule 105.6 (D.Md. 2021). For the

reasons set forth below, the Court will grant the Motion.

I. BACKGROUND

Plaintiff Michele Williams alleges that Defendants retaliated against her in violation

of the National Defense Authorization Act, 41 U.S.C. § 4712 et seq. (“NDAA”), and the

American Recovery and Reinvestment Act, Pub. L. No. 111-5, § 1553, 123 Stat. 115

(“ARRA”). (First Am. Compl. ¶¶ 130–38, ECF No. 1-12).1 The facts underlying Williams’

1 The First Amended Complaint contained several other counts, including wrongful

termination in violation of Maryland public policy, defamation, and violation of 42 U.S.C.

§ 1981. (See First Am. Compl. ¶¶ 103–29, 139–52). Williams withdrew her § 1983 claim

before the Court issued its initial ruling in this matter. (Mem. P. & A. Supp. Pl.’s Opp’n

Defs.’ Mot. Dismiss Alt. Summ. J. at 25, ECF No. 11-1). She then abandoned her wrongful

Complaint are set forth in detail in the Court’s September 30, 2019 Memorandum Opinion

granting Morgan State’s Motion. (See Sept. 30, 2019 Mem. Op. [“Mem. Op.”] at 1–4, ECF

No. 19).

On or about November 27, 2017, Williams filed a complaint under the Maryland

Whistleblower Law, Md. Code Ann., State Pers. and Pens. § 5-309, with the State of

Maryland’s Office of Secretary of State. (Defs.’ Mot. Dismiss Alt. Summ. J. [“Defs.’

Mot.”] at 3; see Administrative Compl. at 10, ECF No. 5-2). On April 26, 2018, Williams

filed a Complaint in the Circuit Court for Baltimore City, Maryland. (Not. Removal ¶ 1,

ECF No. 1; Compl., ECF No. 1-4). On November 30, 2018, Williams filed a First Amended

Complaint. (Not. Filing First Am. Compl. at 2, ECF No. 1-13). On January 2, 2019,

Defendants removed the case to this Court. (ECF No. 1).

On January 9, 2019, Defendants filed their Motion to Dismiss or, in the Alternative,

for Summary Judgment. (ECF No. 5). On February 15, 2019, Williams filed her

Opposition. (ECF No. 11). On March 20, 2019, Defendants filed a Reply. (ECF No. 16).

The Court issued an Order and Memorandum Opinion on September 30, 2019, granting

the Motion, based in part on Eleventh Amendment immunity grounds. (ECF Nos. 18, 19).

On October 14, 2019, Williams filed a timely Motion for Reconsideration.2 (ECF No. 20).

On October 28, 2019, the Defendants filed an Opposition. (ECF No. 21). Williams filed a

termination and defamation claims on appeal. (Mar. 18, 2021 Op. at 3 n.1, ECF No. 30-1).

Accordingly, only her NDAA and ARRA claims survive.

2 Williams filed a Notice of Appeal on October 30, 2019. (ECF No. 22).

Reply on November 12, 2019. (ECF No. 25). The Court denied Williams’ Motion for

Reconsideration on December 23, 2019. (ECF No. 26).

On appeal, the Fourth Circuit vacated the Court’s decision upon finding that the

Court “legally erred when it dismissed Williams’ retaliation claims solely based on

Eleventh Amendment immunity.” (Mar. 18, 2021 Op. [“4th Cir Op.”] at 4, ECF No. 30-1).

The Fourth Circuit found, however, that the Court had not considered whether Williams’

claims were barred by state sovereign immunity. (Id. at 4–5). The Fourth Circuit thus

remanded the case for the Court to determine whether, through enactment of the Maryland

Tort Claims Act, Md. Code Ann., State Gov’t § 12-101 et seq., Maryland waived its

sovereign immunity for the purposes of Williams’ NDAA and ARRA claims. (4th Cir Op.

at 5).

On April 13, 2021, the Court ordered supplemental briefing on that issue. (ECF No.

33). Defendants filed a Supplemental Memorandum in support of their Motion to Dismiss

or, in the Alternative, for Summary Judgment on May 12, 2021. (ECF No. 34). Williams

filed a Supplemental Opposition on June 9, 2021. (ECF No. 37). Defendants filed a

Supplemental Reply on June 24, 2021. (ECF No. 40).

II. DISCUSSION

A. Standard of Review

The purpose of a Rule 12(b)(6) motion3 is to “test[ ] the sufficiency of a complaint,”

not to “resolve contests surrounding the facts, the merits of a claim, or the applicability of

3 As set forth in the Court’s September 30, 2019 Memorandum Opinion, the Court

declined to convert Morgan State’s Motion to a motion for summary judgment because

defenses.” King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (quoting Edwards v. City

of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). A complaint fails to state a claim if it

does not contain “a short and plain statement of the claim showing that the pleader is

entitled to relief,” Fed.R.Civ.P. 8(a)(2), or does not “state a claim to relief that is plausible

on its face,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Though the plaintiff is

not required to forecast evidence to prove the elements of the claim, the complaint must

allege sufficient facts to establish each element. Goss v. Bank of Am., N.A., 917 F.Supp.2d

445, 449 (D.Md. 2013) (quoting Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012)),

aff’d, 546 F.App’x 165 (4th Cir. 2013).

In considering a Rule 12(b)(6) motion, a court must examine the complaint as a

whole, consider the factual allegations in the complaint as true, and construe the factual

allegations in the light most favorable to the plaintiff. Albright v. Oliver, 510 U.S. 266, 268

(1994); Lambeth v. Bd. of Comm’rs of Davidson Cnty., 407 F.3d 266, 268 (4th Cir. 2005)

(citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). But the court need not accept

unsupported or conclusory factual allegations devoid of any reference to actual events,

Williams filed an affidavit seeking discovery pursuant to Federal Rule of Civil Procedure

56(d). (See Mem. Op. at 5–7).

United Black Firefighters of Norfolk v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979), or legal

conclusions couched as factual allegations, Iqbal, 556 U.S. at 678.

B. Analysis

State sovereign immunity “is a broad[ ] doctrine that ‘bars all claims by private

citizens against state governments and their agencies, except where Congress has validly

abrogated that immunity or the state has waived it.’” Williams v. Morgan State Univ., 850

F.App’x 172, 174 (4th Cir. 2021) (quoting Passaro v. Virginia, 935 F.3d 243, 247 (4th Cir.

2019)).4 “[T]he States’ immunity from suit is a fundamental aspect of the sovereignty

which the States enjoyed before the ratification of the Constitution, and which they retain

today.” Id. (quoting Alden v. Maine, 527 U.S. 706, 713 (1999)). “Unlike Eleventh

Amendment immunity, a state does not waive its sovereign immunity by removing a suit

to federal court.” Id. (citing Passaro, 935 F.3d at 247).

Courts in Maryland apply a two-part test to determine whether sovereign immunity

applies in a specific case: “(1) whether the entity asserting immunity qualifies for its

protection; and, if so, (2) whether the legislature has waived immunity, either directly or

by necessary implication, in a manner that would render the defense of immunity

unavailable.” Stern v. Bd. of Regents, Univ. Sys. of Md., 846 A.2d 996, 1001 (Md. 2004)

(quoting ARA Health Servs. Inc. v. Dep’t of Pub. Safety & Corr. Servs., 685 A.2d 435,

4 As Williams conceded on appeal, neither the NDAA nor the ARRA contain

language “unequivocally express[ing Congress’s] intent to abrogate [State] immunity.”

Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55 (1996) (citation omitted). Williams does

not argue the point in her supplemental briefing on the instant Motion. Accordingly, the

Court focuses its analysis on whether Maryland voluntarily waived its sovereign immunity

as to claims arising under those statutes.

438 (Md. 1996)). There is no question that Morgan State is an entity generally protected

by sovereign immunity. See Md. Code Ann., Educ. § 14-101(a) (providing that Morgan

State is “an instrumentality of the State” and “an independent unit of State government”).

Thus, the Court must decide whether the Maryland legislature has waived immunity

by enacting the Maryland Tort Claims Act, Md. Code Ann., State Gov’t (“S.G.”) § 12-101

et seq. (“MTCA”). “[T]he question of waiver of sovereign immunity by a state

constitutional provision or statute is a matter of state law, ‘as to which the decision of the

[state’s highest court] is controlling.’” Lee-Thomas v. Prince George’s Cnty. Pub. Sch.,

666 F.3d 244, 249 (4th Cir. 2012) (quoting Palmer v. Ohio, 248 U.S. 32, 34 (1918)). The

Court of Appeals of Maryland has held that no suit can be maintained against the State

“unless the General Assembly has specifically waived the doctrine” of sovereign

immunity. Stern, 846 A.2d at 1001. Maryland courts “have strictly construed such waivers

in favor of the sovereign.” Bd. of Educ. of Balt. Cnty. v. Zimmer-Rubert, 973 A.2d 233,

240 (Md. 2009) (citations omitted). Thus, courts read statutory waiver language “narrowly

in order to avoid weakening the doctrine of sovereign immunity by judicial fiat.” Stern,

846 A.2d at 1012–13.

The MTCA states that subject to certain exceptions not at issue here, “the immunity

of the State and of its units is waived as to a tort action, in a court of the State[.]” S.G. § 12-

104(a)(1).5 “Tort action” is not defined in the MTCA’s definitions section. See S.G. § 12-

5 This Court has repeatedly held that “[a]ny sovereign immunity that defendants

may claim in Maryland state court travel[ ] with them to federal court.” Robinson v.

Pytlewski, No. PX-19-1025, 2020 WL 607030, at *9 n.4 (D.Md. Feb. 7, 2020) (internal

quotation marks and citations omitted); see also Stewart v. North Carolina, 393 F.3d 484,

101. Thus, the Court is left to decide whether Williams’ claims under the NDAA and

ARRA are “tort actions” within the meaning of the MTCA. The Court of Appeals of

Maryland has instructed courts faced with such an issue of statutory construction to

“begin[] with the plain language of the statute, and ordinary, popular understanding of the

English language dictates interpretation of its terminology,” adding that “[i]f statutory

language is unambiguous when construed according to its ordinary and everyday meaning,

then we give effect to the statute as it is written.” Zimmer-Rubert, 973 A.2d at 241

(citations omitted). Courts should “avoid a construction of the statute that is unreasonable,

illogical, or inconsistent with common sense.” Id. at 242 (citation omitted).

This Court recently confronted a nearly identical question in Bozarth v. Maryland

State Department of Education, No. DLB-19-3615, 2021 WL 1225448 (D.Md. Mar. 31,

2021). In that case, Defendants asserted that they were protected by sovereign immunity

as to plaintiff’s employment discrimination claims arising under the Family and Medical

Leave Act (“FMLA”) and the Americans with Disabilities Act (“ADA”). Id. at *5–11. The

Court found that:

A plain reading of § 12-104 suggests that the State has not

waived its common law sovereign immunity with respect to

claims arising under Title I of the ADA or the self-care

provision of the FMLA. . . . The terms of § 12-104(a)(1) are

clearly limited to tort actions. Additionally, § 12-104 is

entitled, “Waiver of State tort immunity.” Neither of Ms.

Bozarth’s causes of actions based on Title I of the ADA or the

490 (4th Cir. 2005) (finding that a state “did not waive sovereign immunity by voluntarily

removing the action to federal court for resolution of the immunity question”). Thus, to the

extent Defendants did not otherwise waive their sovereign immunity as to Williams’

claims, they have not waived it by removing the action to this Court.

self-care provision of the FMLA relate to torts. The claims the

State challenges here relate only to federal employment law.

Bozarth, 2021 WL 1225448, at *7.

This Court has confronted this issue on several other occasions and each time has

similarly found that Maryland’s waiver of sovereign immunity as to tort claims did not

extend to claims arising under federal statutes. See Sutton v. Dep’t of Hum. Servs., No.

RDB-19-0542, 2019 WL 4447379, at *3 (D.Md. Sept. 17, 2019) (“The MTCA waives

immunity to tort actions brought in state court; it does not waive immunity as to all causes

of actions or to claims brought under federal law.”); Johnson v. Md. Transit Admin., No.

CCB-18-3768, 2019 WL 3290982, at *2 (D.Md. July 19, 2019) (finding that claims under

the Fair Labor Standards Act were statutory claims and therefore did not fall under a waiver

of sovereign immunity that extended “only to contracts and torts claims”), aff’d, 821

F.App’x 258 (4th Cir. 2020) (per curiam); Carter v. Maryland, No. JKB-12-1789, 2012

WL 6021370, at *6 (D.Md. Dec. 3, 2012) (“The State Defendants have provided no

authority for the proposition that a violation of a federal statute—in this case, the ADA—

constitutes a tort under Maryland law.”). Defendants thus urge the Court to adopt the

reasoning in Bozarth and these other decisions and find that Maryland has not waived

sovereign immunity as to Williams’ claims under the NDAA and ARRA.

Williams has identified no case in which this Court or any other court has found that

the MTCA waived sovereign immunity as to claims arising under a federal statute.

Williams argues, however, that the Bozarth decision was in error, and points to two

decisions by this Court in which it found that the MTCA’s notice requirement extended to

statutory claims arising under the Maryland Fair Employment Practices Act (“MFEPA”).

See Royster v. Gahler, 154 F.Supp.3d 206, 220 (D.Md. 2015); Bales v. Md. Judiciary/

Admin. Off. of the Cts., No. JFM-15-3293, 2016 WL 6879902, at *12 (D.Md. Nov. 22,

2016).6 Williams argues that the Court should extend the reasoning of these cases and find

that the MTCA waives the State’s sovereign immunity as to federal statutory claims.

The Court is unpersuaded by these two decisions. First, both decisions relate to

plaintiffs’ compliance with the MTCA notice requirements in a case arising under a

Maryland statute containing its own waiver of sovereign immunity. See S.G. § 20-903. The

cases are thus distinguishable from this action, which does not turn on compliance with

MTCA notice requirements and which involves federal statutes that do not abrogate state

sovereign immunity.

Further, Royster relies heavily on Hansen v. City of Laurel, 25 A.3d 122 (Md. 2011),

in which the court found that an employee of a local government was subject to the pre-

suit notice requirements set forth in the Local Government Tort Claims Act, Md. Code

Ann., Cts. & Jud. Proc. [“C.J.P.”] § 5-301 (“LGTCA”). See Royster, 154 F.Supp.3d at 220

(“Based on Hansen, I am satisfied that the notice requirement of the MTCA is applicable

to an employment discrimination claim against the State.”). The LGTCA contains a similar

waiver of sovereign immunity to that contained in the MTCA. Compare C.J.P. § 5-

6 The Court notes that the Bales decision does not contain its own significant

analysis of the issue, instead largely confining its discussion to a recitation of the holding

in Royster and concluding that it found Royster persuasive. See Bales, 2016 WL 6879902,

at *12. Thus, the Court will focus its review of the applicability and persuasiveness of the

decisions on the analysis contained in Royster.

303(b)(1) (“[A] local government shall be liable for any judgment against its employee for

damages resulting from tortious acts or omissions committed by the employee[.]”), with

S.G. § 12-104(a)(1) (“[T]he immunity of the State and of its units is waived as to a tort

action, in a court of the State[.]”). However, the Hansen decision contains virtually no

analysis of the sovereign immunity waiver contained in the LGTCA, let alone the MTCA.

See Bozarth, 2021 WL 1225448, at *8 (noting that the Hansen Court “summarily

concluded the notice requirement applied to the plaintiff’s employment action because the

notice provision, by its plain terms, applied to any action for unliquidated damages against

a local government—not merely those sounding in tort” (citing Hansen, 25 A.3d at 130

n.7)); Hansen, 25 A.3d at 137 n.15 (“Whether the City retained its immunity to such

employment discrimination claims is open as well.”). Because Hansen is inapposite, so is

Royster.7

Williams also points to several decisions by the Court of Appeals of Maryland

finding that the MTCA or the LGTCA permit claims against the State in cases that fall

outside of what this Court views as an ordinary definition of a “tort action.” See, e.g.,

Espina v. Jackson, 112 A.3d 442, 454 (Md. 2015) (finding that the waiver of sovereign

immunity as to “tortious acts or omissions” in the LGTCA extends to state constitutional

claims); Green v. N.B.S., Inc., 976 A.2d 279, 288 (Md. 2009) (finding that a Maryland

statute limiting noneconomic damages for “victims of tortious conduct” extended to a

7 The persuasive power of Royster is also somewhat diminished because the

decision was later abrogated by the Fourth Circuit, albeit on partially unrelated grounds.

See Pense v. Md. Dep’t of Pub. Safety & Corr. Servs., 926 F.3d 97, 102 (4th Cir. 2019).

tenant’s statutory claims brought under the Maryland Consumer Protection Act); Lee v.

Cline, 863 A.2d 297, 304 (Md. 2004) (“The current language of the [MTCA] plainly

appears to cover intentional torts and constitutional torts as long as they were committed

within the scope of state employment and without malice or gross negligence.”); see also

Litz v. Md. Dep’t of Env’t, 131 A.3d 923, 935 (Md. 2016) (finding that inverse

condemnation claims should be treated “differently from common law or statutory torts”

(emphasis added)).

The Court of Appeals decisions cited by Williams are distinguishable from the case

at bar. In the case of Espina and Green, both decisions involve statutes other than the

MTCA that refer not to “tort actions,” but to “tortious acts” or “tortious conduct.” In the

Court’s view—mindful of the admonition that it should read statutory waiver language

“narrowly in order to avoid weakening the doctrine of sovereign immunity by judicial fiat,”

Stern, 846 A.2d at 1012–13—these phrases, which describe categories of conduct by

defendants, are distinguishable from a “tort action,” which refers to a type of legal claim.

The Court declines to extend the reasoning in those cases to the distinct language contained

in the MTCA.

With respect to Lee, the Court finds that “constitutional torts” are distinguishable

from claims arising under statute. As the Maryland Court of Appeals has explained, “we

have previously referred to constitutional violations as ‘constitutional torts.’” Espina, 112

A.3d at 451. The phrase “statutory torts” does not share this history; indeed, it appears to

have found its way into a total of six Maryland appellate court decisions in the history of

the state.8 Given this history, and once again mindful of the limitations imposed by Stern,

the Court declines to extend the reasoning in Lee regarding state constitutional claims to

claims arising under federal statutes.

As set forth above, neither the Fourth Circuit nor the Maryland Court of Appeals

has provided clear guidance on the issue at bar.9 Although the Court finds some of the case

law on the periphery of this question vexing, it is compelled by the edict of Zimmer-Rubert

to find that, until and unless the Court of Appeals or the Fourth Circuit issues an express

contradictory holding, the phrase “tort action” has an ordinary meaning and it does not

include federal statutory causes of action. See 973 A.2d at 241 (advising courts that “[i]f

statutory language is unambiguous when construed according to its ordinary and everyday

meaning, then we give effect to the statute as it is written”); see also R.F.V.

Heuston, Salmond on the Law of Torts 13 (17th ed. 1977) (“We may . . . define a tort as a

civil wrong for which the remedy is a common-law action for unliquidated damages, and

which is not exclusively the breach of a contract or the breach of a trust or other merely

equitable obligation.” (emphasis added)). Thus, the Court finds that Maryland has not

8 In comparison, a Westlaw search indicates that the phrase “constitutional tort” has

appeared in ninety-one Maryland appellate court decisions.

9 The Court notes, however, that the Fourth Circuit has impliedly offered some

support for its decision through its affirmance in Johnson v. Maryland Transit

Administration, 821 F.App’x 258 (4th Cir. 2020) (per curiam). Via its unpublished per

curiam opinion, the Fourth Circuit affirmed a decision by this Court holding that claims

under the Fair Labor Standards Act were statutory claims and therefore did not fall under

a waiver of sovereign immunity that extended “only to contracts and torts claims.” See

Johnson, 2019 WL 3290982, at *2.

waived its sovereign immunity to Williams’ claims under the NDAA and ARRA.

Accordingly, the Court will once again grant Defendants’ Motion.10

III. CONCLUSION

For the foregoing reasons, the Court will grant Defendants’ Motion to Dismiss or,

in the Alternative, for Summary Judgment (ECF No. 5), on remand pursuant to the

judgment of the United States Court of Appeals for the Fourth Circuit (ECF Nos. 30, 31).

A separate Order follows.

Entered this 26th day of July, 2021.

/s/ .

George L. Russell, III

United States District Judge

10 Because the Court finds that Williams’ surviving claims are foreclosed by

sovereign immunity, it need not reach the question of whether her claims would survive on

the merits.