The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ALISHA L. GORDON
* Civil Action No. CCB-20-3544
v. *
76
MARYLAND DEPARTMENT OF *
PUBLIC SAFETY AND
CORRECTIONAL SERVICES
*
kk RK
MEMORANDUM
This discrimination action involves a dispute between Alisha Gordon and her employer,
the Maryland Department of Public Safety and Correctional Services (“the Department”). Gordon,
who is representing herself, raises claims that the Department failed to accommodate her disability,
subjected her to unequal terms and conditions of employment, retaliated against her, and
constructively discharged her. Now pending before the court is the Department’s motion to
dismiss. (ECF 10). The matter has been fully briefed and no oral argument is necessary. See Local
Rule 105(6) (D. Md. 2021). For the reasons discussed herein, the motion will be granted.
BACKGROUND
Alisha Gordon was hired by the Maryland Department of Public Safety and Correctional
Services in February 2000. (ECF 1, Compl., at 6). Ms. Gordon sustained a knee injury while
working in August 2013, for which she took workers compensation. (/d.). Approximately two
years later, on August 6, 2015, Human Resource representative Ilene Rivkin advised Ms. Gordon
to return to work on “light duty” assignments. (/d.). In December 2015, the light duty assignment
was made permanent, this change was forward to Human Resources, and Ms. Gordon was not
addressed about her disability afterward. (/d.).
From some time in December 2017 until February 14, 2018, Ms. Gordon took leave to
receive surgery on her knee. (/d.). When she went to headquarters later that day to submit her
return to duty note, Human Resources representative Stan Harris told her that she could not return
to work on light duty status because she had exhausted the seventy-five days of light duty permitted
by policy. (/d.). He further advised her that her agency had violated the general policy which limits
workers to seventy-five days of light duty assignment and asked her who her administrators were
in order to question them about how this was allowed. (/d.). Mr. Harris informed Ms. Gordon she
should begin the process of applying for medical amen and that she was not permitted to
return to work. (/d.). Human Resources representative Karen Dukes assisted Ms. Gordon with her
application for a medical retirement. (/d.).
Ms. Gordon alleges that, in February 2018, Division managers were directed to discard
documentation related to employees who return to work after an injury. (/d.). The Department then
discarded the essential duties checklist, which also had not been given to Ms. Gordon upon her
return to work earlier in 2015. (/d.).
Since 2018, the Department’s retirement board has denied Ms. Gordon’s request for a
medical retirement three times, most recently on October 25, 2019. U/d.). Ms. Gordon asserts that
the retirement board required her to visit a different doctor when she received a favorable outcome
from the doctor she previously visited. (/d. at 7). The Office of Administrative Hearings (“OAH”)
subsequently denied her request on September 21, 2020. (/d. at 6). Ms. Gordon did not seek judicial
review of the OAH decision because she did not receive a copy before the time for an appeal
expired. (/d.).
When Ms. Gordon applied for retirement, she received an options letter with four options:
to resign; to provide a list of reasonable accommodations; to be cleared to return to previous
employment; or to apply for medical retirement. (/d.). Human Resources, however, called her to
state that only two of these options were available, which Ms. Gordon understood to mean she was
allowed to either resign or to retire. (/d.). The Department could not offer her another, transitional
position because she had already used the seventy-five days of light duty available under state
policy. Ms. Gordon alleges that other employees received paperwork that offered them reasonable
accommodations after they received their option letters, and some were given alternative
assignments for which Ms. Gordon believes she qualified. (/d.). Ms. Gordon also alleges she was
never offered transitional work assignments or duties while employed, instead remaining in her
regular position. (/d.). She states that the Department defended their actions by claiming the
Human Resources staff was inexperienced and unfamiliar with workers compensation. (/d.).
Ms. Gordon alleges that, in August 2019, she was constructively discharged by being
forced to resign “under duress.” (/d. at 7). She has since been unable to obtain healthcare for herself
or her two dependent children, one of whom suffers from chronic illness. Ms. Gordon alleges that
the Department’s Human Resources staff continued to “harass” her with paperwork, failure to
process her documentation, and cancellation of her benefits. (/d.).
Based on the foregoing allegations, Ms. Gordon filed an untimely charge with the Equal
Employment Opportunity Commission (“EEOC”) on August 7, 2020. (See id. at 8; see also ECF
1-1, EEOC Charge, at 1). Her charge stated that she experienced discrimination based on disability
and that she experienced retaliation. (/d. at 2-4). Ms. Gordon received a notice of right to sue on
September 11, 2020. (/d. at 8). She brought this action on December 9, 2020, seeking damages
and equitable relief and alleging violations of Title VII of the Civil Rights Act of 1964 (“Title
VII”), the Maryland Fair Employment Practices Act (“FEPA”), and the Americans with
»
Disabilities Act (“ADA”). On March 4, 2021, the Department filed a motion to dismiss (ECF 10),
which is now fully briefed and ripe for disposition.
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 plaintiffs claim ‘across the line from
conceivable to plausible.” | /d. (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 vy.
Cozart, 680 F.3d 359, 365 (4th Cir. 2012)). When a plaintiff appears pro se, filings are to be
“liberally construed” and “however artfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007).
DISCUSSION
' 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, 616-17 (4th Cir. 2020). This is because a prima facie case is an evidentiary
standard rather than a pleading standard. Therefore, plaintiffs are required only to allege facts to
plausibly satisfy the elements of a cause of action created by the relevant statute. Jd.
I. The State of Maryland Has Not Waived Its Eleventh Amendment Immunity to Suit
The Eleventh Amendment provides that “[t]he 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 Eleventh Amendment bars suit against a state, state agents, and state
instrumentalities absent congressional abrogation of that immunity or the state’s clear and
unambiguous waiver of its immunity. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89,
98-99 (1984). The Supreme Court held in Board of Trustees of the Univ. of Alabama vy. Garrett
that Congress did not validly abrogate state immunity when enacting the ADA under the
enforcement provisions of the Fourteenth Amendment. 531 U.S. 356, 369-70 (2001). There, the
Court concluded that the legislative record of the ADA “fails to show that Congress did in fact
identify a pattern of irrational state discrimination in employment against the disabled” that would
justify creating a private remedy against the state. /d. at 368. Similarly, the Fourth Circuit has
concluded that FEPA “does not constitute a consent to suit in federal court.” Michael Pense □□□
Maryland Department of Public Safety and Correctional Services, 926 F.3d 97, 103 (4th Cir. 2019)
(cleaned up).
Ms. Gordon’s claims under Title I of the ADA,’ 42 U.S.C. § 12101 ef seg., as amended,
and FEPA, Md. Code Ann., State Govt. § 20-606, are barred by the Eleventh Amendment. Because
the Maryland Department of Safety and Correctional Services is a state agency, it is entitled to
* Ms. Gordon’s complaint fails to specify under which Title of the ADA it is brought. The claim may
be and is interpreted to be brought under Title I, which prohibits discriminatory hiring and personnel
practices by employers against “qualified individuals” with disabilities and requires employers to
make reasonable efforts to accommodate mental and physical limitations as long as the
accommodations do not present an undue hardship to the employer. 42 U.S.C. §§ 12111-17.
immunity from suit by Ms. Gordon. Accordingly, even assuming the truth of Ms. Gordon’s claims,
her ADA and FEPA claims must be dismissed.
II. Ms. Gordon Fails to Plead an Actionable Title VII Violation
Title VII makes it illegal for an employer “to discharge any individual, or otherwise 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)(1). Notably, Title VII does not prohibit discrimination on the basis
of disability.
Ms. Gordon does not allege discrimination on the basis of her race, color, religion, sex, or
national origin. Rather, she has consistently asserted that she was discriminated against on the
basis of her disability and then retaliated against because of her requests for accommodation. (See
ECF 1; ECF 1-1, EEOC Charge, at 1-4). To the extent that Ms. Gordon’s complaint could be read
to allege discrimination on a basis prohibited by Title VII, such a claim would be subject to
dismissal for exceeding the scope of the charge she filed with the EEOC.* (ECF 1-1 at 1).
Accordingly, the motion to dismiss must be granted as to Ms. Gordon’s Title VII claim.
CONCLUSION
For the reasons stated herein, the Department’s motion to dismiss will be granted as to all
claims. A separate Order follows.
11/23 /a/ LYS
Date Catherine C. Blake
United States District Judge
> While Title VII also makes it unlawful for an employer to retaliate against an employee “because he
has opposed any practice made an unlawful employment practice by this subchapter,” such practices
made unlawful are those that discriminate against employees on the basis of race, color, religion, sex,
or national origin. 42 U.S.C. § 2000e-2. Therefore, Ms. Gordon’s retaliation claim based on the
discrimination she alleges she endured due to her disability also would not be covered by Title VII.