Coleman v. Maryland Court of Appeals

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DANIEL COLEMAN, 

Plaintiff-Appellant,

v.

MARYLAND COURT OF APPEALS;  No. 09-1582

FRANK BROCCOLINA, State Court

Administrator; LARRY JONES,

Contract Administrator,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Benson Everett Legg, Chief District Judge.

(1:08-cv-02464-BEL)

Argued: September 23, 2010

Decided: November 10, 2010

Before TRAXLER, Chief Judge, SHEDD, Circuit Judge,

and James C. DEVER III, United States District Judge

for the Eastern District of North Carolina,

sitting by designation.

Affirmed by published opinion. Chief Judge Traxler wrote the

opinion, in which Judge Shedd and Judge Dever joined.

2 COLEMAN v. MARYLAND COURT OF APPEALS

COUNSEL

ARGUED: Edward Smith, Jr., LAW OFFICE OF EDWARD

SMITH, JR., Baltimore, Maryland, for Appellant. Hugh Scott

Curtis, OFFICE OF THE ATTORNEY GENERAL OF

MARYLAND, Baltimore, Maryland, for Appellees. ON

BRIEF: Douglas F. Gansler, Attorney General, Kendra Y.

Ausby, Assistant Attorney General, OFFICE OF THE

ATTORNEY GENERAL OF MARYLAND, Baltimore,

Maryland, for Appellees.

OPINION

TRAXLER, Chief Judge:

Daniel Coleman appeals the dismissal of his amended com-

plaint in this suit alleging, as is relevant here, violations of

Title VII of the Civil Rights Act of 1964 ("Title VII"), see 42

U.S.C.A. §§ 2000e to 2000e-17 (West 2003 & Supp. 2010),

and of the Family and Medical Leave Act of 1993 ("FMLA"),

see 29 U.S.C.A. §§ 2601-54 (West 2009 & Supp. 2010). Find-

ing no error, we affirm.

I.

Coleman’s Title VII claim was dismissed for failure to state

a claim upon which relief can be granted. See Fed. R. Civ. P.

12(b)(6). In reviewing such a dismissal, we accept the facts

alleged in the complaint as true and construe them in the light

most favorable to the plaintiff. See Flood v. New Hanover

Cnty., 125 F.3d 249, 251 (4th Cir. 1997). Viewed through that

lens, the facts for purposes of this appeal are as follows.

Coleman, an African-American male, was employed by the

Maryland Court of Appeals from March 2001 to August 2007

and served as executive director of procurement and contract

COLEMAN v. MARYLAND COURT OF APPEALS 3

administration since early 2003. Coleman was supervised by

Frank Broccolina, a white male, and Faye Gaskins, whose

race is not specified. Larry Jones, whose race also is not spec-

ified, was a member of Coleman’s staff and was related to

Gaskins. In October 2005, Coleman investigated a matter

involving Jones and Joyce Shue, a white female. Coleman’s

investigation "resulted in a five (5) day suspension" for Jones.

J.A. 21. After Broccolina and Gaskins intervened, however,

Jones’s suspension was reduced to only one day. In retaliation

for Coleman’s investigation, Jones falsely alleged that Cole-

man had steered contracts to vendors in which Coleman had

an interest, and Jones encouraged Broccolina to investigate.

Broccolina, in turn, shared the allegations with others despite

knowing that they were false.

During his employment, Coleman satisfied the performance

standards of his position and received all applicable "raises

and increments." J.A. 26. However, in early April 2007, he

received a letter of reprimand from Gaskins concerning "a

communication protocol." J.A. 25. Coleman’s appeal of the

reprimand was unsuccessful. Then, on August 2, 2007, Cole-

man sent Broccolina a sick-leave request "based upon a docu-

mented medical condition." J.A. 26. Broccolina contacted

Coleman the next day and informed him that he would be ter-

minated if he did not resign. Coleman alleges that he was

fired for requesting sick leave and because he is black. He

also alleges that the contract-steering charge played a role in

his termination.

After exhausting his administrative remedies, Coleman ini-

tiated the present action. The complaint before us names

Broccolina, Jones, and the Maryland Court of Appeals as

defendants and alleges violations of Title VII and the FMLA.1

1

The district court construed Coleman’s complaint as asserting the

FMLA claim against Broccolina and Jones in their official capacities only.

Coleman does not challenge that interpretation on appeal.

Coleman’s complaint also includes a state-law claim for defamation.

The district court dismissed that claim as barred by the Eleventh Amend-

ment and the Maryland Tort Claims Act. Coleman does not challenge the

dismissal of that claim.

4 COLEMAN v. MARYLAND COURT OF APPEALS

On defendants’ motion, the district court dismissed the Title

VII claim on the grounds that Coleman failed to state a claim

for which relief could be granted, see Fed. R. Civ. P. 12(b)(6),

and dismissed the FMLA claim on the basis that it was barred

by Eleventh Amendment immunity, see Fed. R. Civ. P.

12(b)(1).

II.

Arguing that the complaint properly alleged both a claim

for disparate treatment and a claim for retaliation, Coleman

maintains that the district court erred in dismissing his Title

VII cause of action. We disagree.

We review de novo the grant of a motion to dismiss under

Rule 12(b)(6). See Sucampo Pharm., Inc. v. Astellas Pharma,

Inc., 471 F.3d 544, 550 (4th Cir. 2006). When ruling on such

a motion, "a judge must accept as true all of the factual allega-

tions contained in the complaint." Erickson v. Pardus, 551

U.S. 89, 94 (2007) (per curiam) (citations omitted). A com-

plaint "need only give the defendant fair notice of what the

claim is and the grounds upon which it rests." Id. at 93 (alter-

ation and internal quotation marks omitted). However, to sur-

vive a motion to dismiss, the complaint must "state[ ] a

plausible claim for relief" that "permit[s] the court to infer

more than the mere possibility of misconduct" based upon "its

judicial experience and common sense." Ashcroft v. Iqbal,

129 S. Ct. 1937, 1950 (2009). In this regard, while a plaintiff

is not required to plead facts that constitute a prima facie case

in order to survive a motion to dismiss, see Swierkiewicz v.

Sorema N.A., 534 U.S. 506, 510-15 (2002), "[f]actual allega-

tions must be enough to raise a right to relief above the specu-

lative level," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007). See also Francis v. Giacomelli, 588 F.3d 186, 193

(4th Cir. 2009).

Title VII prohibits an employer from "discharg[ing] any

individual, or otherwise . . . discriminat[ing] against any indi-

COLEMAN v. MARYLAND COURT OF APPEALS 5

vidual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s race."

42 U.S.C.A. § 2000e-2(a). Absent direct evidence, the ele-

ments of a prima facie case of discrimination under Title VII

are: (1) membership in a protected class; (2) satisfactory job

performance; (3) adverse employment action; and (4) differ-

ent treatment from similarly situated employees outside the

protected class. See White v. BFI Waste Servs., LLC, 375 F.3d

288, 295 (4th Cir. 2004). Title VII also prohibits employers

from "discriminat[ing] against any of [their] employees . . .

because [the employees] ha[ve] opposed any practice made an

unlawful employment practice by [Title VII], or because [the

employees] ha[ve] . . . participated in any manner in an inves-

tigation" under Title VII. 42 U.S.C.A. § 2000e-3(a). The ele-

ments of a prima facie retaliation claim under Title VII are:

(1) engagement in a protected activity; (2) adverse employ-

ment action; and (3) a causal link between the protected activ-

ity and the employment action. See Mackey v. Shalala, 360

F.3d 463, 469 (4th Cir. 2004).

Here, although Coleman’s complaint conclusorily alleges

that Coleman was terminated based on his race, it does not

assert facts establishing the plausibility of that allegation. The

complaint alleges that Jones and Broccolina began their cam-

paign against Coleman in retaliation for his investigation of

Jones’s conflict with Shue. The complaint further alleges that

Coleman "was treated differently as a result of his race than

whites" and specifically identifies Broccolina as a white per-

son who was not disciplined despite having "outside business

involvements." J.A. 21-22, 25 (emphasis omitted). However,

the complaint fails to establish a plausible basis for believing

Broccolina and Coleman were actually similarly situated or

that race was the true basis for Coleman’s termination.2 The

complaint does not even allege that Broccolina’s "outside

2

The complaint also conclusorily alleges that Coleman was given his

letter of reprimand because of his race, but no factual allegations lend any

plausibility to this claim either.

6 COLEMAN v. MARYLAND COURT OF APPEALS

business involvements" were improper, let alone that any

impropriety was comparable to the acts Coleman was alleged

to have committed.3 Absent such support, the complaint’s

allegations of race discrimination do not rise above specula-

tion. Thus, the district court correctly concluded that the com-

plaint failed to state a Title VII race discrimination claim. See

Iqbal, 129 S. Ct. at 1949 ("Threadbare recitals of the elements

of a cause of action, supported by mere conclusory state-

ments, do not suffice.").

The district court also correctly ruled that Coleman failed

to state a Title VII retaliation claim. No facts in the complaint

identify any protected activity by Coleman that prompted the

retaliation of which he complains. Coleman maintains that his

protected activity was his intervention in the conflict between

Jones and Shue. However, the complaint does not explain

why Coleman’s investigation would be considered protected

activity. We therefore affirm the dismissal of the Title VII

claim.

III.

Coleman next contends that the district court erred in dis-

missing his FMLA claim on the basis of Eleventh Amend-

ment immunity. Specifically, he argues that the district court

erred in concluding that Congress unconstitutionally abro-

gated the states’ Eleventh Amendment immunity with respect

to the FMLA’s self-care provision. We disagree.

The Eleventh Amendment bars suit in federal court against

an unconsenting state and any governmental units that are

arms of the state unless Congress has abrogated the immunity.

See Alden v. Maine, 527 U.S. 706, 755-57 (1999). In order to

3

The notion that Broccolina’s "outside business interests" might make

him similarly situated to Coleman is also muddled by Coleman’s allega-

tion that Broccolina and Jones knew that the allegations of contract steer-

ing against Coleman were false.

COLEMAN v. MARYLAND COURT OF APPEALS 7

do so, Congress must unequivocally declare its intent to abro-

gate and must act pursuant to a valid exercise of its power.

See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55 (1996).

The first prong of this test is clearly satisfied here. See

Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 726

(2003) (explaining that "[t]he clarity of Congress’ intent" to

abrogate the states’ immunity to FMLA suits "is not fairly

debatable"). It is the second requirement that is at issue.

The Supreme Court has held that while Congress cannot

validly abrogate a state’s immunity from private suit under its

Article I powers, it can do so under its Fourteenth Amend-

ment, § 5 authority. See Bd. of Trs. of the Univ. of Ala. v. Gar-

rett, 531 U.S. 356, 364 (2001). The Fourteenth Amendment

provides that "[n]o State shall make or enforce any law which

shall abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny to

any person within its jurisdiction the equal protection of the

laws." U.S. Const. amend. XIV, § 1. Section 5 authorizes

Congress to enact "appropriate legislation" to enforce these

substantive guarantees. Id. § 5. This section authorizes Con-

gress not only to codify the Supreme Court’s holdings regard-

ing the rights established by the Fourteenth Amendment, but

also to prevent future violations of those rights. See City of

Boerne v. Flores, 521 U.S. 507, 518 (1997). Although Con-

gress may "enact prophylactic legislation prohibiting conduct

that is ‘not itself unconstitutional,’ it may not substantively

redefine Fourteenth Amendment protections." Constantine v.

Rectors & Visitors of George Mason Univ., 411 F.3d 474,

484-85 (4th Cir. 2005) (citing City of Boerne, 521 U.S. at

519). The Supreme Court has held that to ensure Congress

abides by this distinction, "[t]here must be a congruence and

proportionality between the injury to be prevented or reme-

died and the means adopted to that end." City of Boerne, 521

U.S. at 520.

As originally enacted, the FMLA authorized qualified

employees to take up to 12 weeks of unpaid leave annually in

8 COLEMAN v. MARYLAND COURT OF APPEALS

four circumstances, three of which concern caring for family

members: bearing and caring for a child, see 29 U.S.C.A.

§ 2612(a)(1)(A), adopting or providing foster care for a child,

see id. § 2612(a)(1)(B), and caring for a spouse, child, or par-

ent with a serious health condition, see id. § 2612(a)(1)(C).

The fourth circumstance is when "a serious health condition

. . . makes the employee unable to perform the functions of

[his] position." Id. § 2612(a)(1)(D). Congress has subse-

quently amended the FMLA to also authorize leave because

of an exigency arising out of the fact that an employee’s

spouse, child, or parent is on covered active duty, or has been

notified of an impending call to such duty in the armed forces.

See National Defense Authorization Act for Fiscal Year 2008,

Pub. L. No. 110-181, § 585, 122 Stat. 3 (2008) (codified at 29

U.S.C.A. § 2612(a)(1)(E)). The FMLA creates a private right

of action for equitable relief or money damages against any

employer that denies its employee his FMLA rights. See id.

§§ 2615(a), 2617(a).

In Nevada Department of Human Resources v. Hibbs, 538

U.S. 721 (2003), on which Coleman relies, the Supreme Court

addressed whether the FMLA’s third provision, relating to

caring for a family member with a serious health condition,

constituted a valid abrogation of the states’ sovereign immu-

nity. In concluding that it was, the Court determined that Con-

gress had enacted the FMLA in response to "the States’

record of unconstitutional participation in, and fostering of,

gender-based discrimination in the administration of leave

benefits." Hibbs, 538 U.S. at 735; see also id. at 731 (describ-

ing the gender gap in state leave policies as being the result

of "the pervasive sex-role stereotype that caring for family

members is women’s work"). The Court confirmed that a

"heightened level of scrutiny" applied to gender discrimina-

tion, id. at 736, which requires that classifications distinguish-

ing between different genders be substantially related to the

achievement of important governmental objectives. See id. at

728. The Court held that the test was satisfied in the case of

§ 2612(a)(1)(C) because it was "narrowly targeted at the fault-

COLEMAN v. MARYLAND COURT OF APPEALS 9

line between work and family—precisely where sex-based

overgeneralization has been and remains strongest." Id. at

738. As Hibbs concerned only this family-care provision,

§ 2612(a)(1)(C), the Court did not discuss whether Congress

validly abrogated states’ immunity with regard to the self-care

provision, § 2612(a)(1)(D).

The Court’s analysis, focused as it is on the gender-related

nature of § 2612(a)(1)(C), does not support the validity of

Congress’s abrogation of sovereign immunity for violations

of § 2612(a)(1)(D).4 And, the legislative history accompany-

ing the FMLA shows that preventing gender discrimination

was not a significant motivation for Congress in including the

self-care provision; rather, Congress included that provision

to attempt to alleviate the economic effect on employees and

their families of job loss due to sickness and also to protect

employees from being discriminated against because of their

serious health problems. See Brockman v. Wyoming Dep’t of

Family Servs., 342 F.3d 1159, 1164 (10th Cir. 2003); S. Rep.

No. 103-3, at 11-12 (1993), reprinted in 1993 U.S.C.C.A.N.

3, 13-14; H.R. Rep. No. 101-28(I), at 23 (1990). Moreover,

even had Congress intended the self-care provision to be pro-

tection against gender discrimination, Congress did not

adduce any evidence establishing a pattern of the states as

employers discriminating on the basis of gender in granting

leave for personal reasons. See Touvell v. Ohio Dep’t of Men-

tal Retardation & Developmental Disabilities, 422 F.3d 392,

402 (6th Cir. 2005); Laro v. New Hampshire, 259 F.3d 1, 10-

11 (1st Cir. 2001). Without such evidence, the self-care provi-

4

Before Hibbs was decided, we held that Congress exceeded its author-

ity in applying the FMLA to the States. See Lizzi v. Alexander, 255 F.3d

128, 134-36 (4th Cir. 2001). Although Lizzi involved self-care leave, and

thus would seem to be on point, the opinion’s rationale was not specific

to the self-care provision. Instead, it addressed congressional authority in

more general terms, concluding that Congress "does not have the constitu-

tional power to pass such a sweeping statute on the basis of [gender dis-

crimination]." Id. at 135. That analysis is no longer valid in light of Hibbs.

10 COLEMAN v. MARYLAND COURT OF APPEALS

sion cannot pass the congruence-and-proportionality test. See

Touvell, 422 F.3d at 402; Laro, 259 F.3d at 10-11.

Absent a showing that the self-care provision is congruent

and proportional to a Fourteenth Amendment injury that Con-

gress enacted the provision to remedy, Coleman is left to

argue that we should simply evaluate the FMLA’s immunity

abrogation as a whole rather than considering the self-care

provision individually. But we know of no basis for adopting

such an undifferentiated analysis or concluding that the Hibbs

Court did so. See Tennessee v. Lane, 541 U.S. 509, 530-31

(2004) ("[N]othing in our case law requires us to consider

Title II [of the Americans with Disabilities Act], with its wide

variety of applications, as an undifferentiated whole."); Toel-

ler v. Wisconsin Dep’t of Corr., 461 F.3d 871, 879 (7th Cir.

2006) ("[W]e should—indeed must—look at each provision

of the [FMLA] separately, even though we should also evalu-

ate each provision in context."). Indeed, the Hibbs Court took

pains throughout its opinion to make clear that the case it was

deciding concerned only the family-leave portion of the

FMLA. See, e.g., Hibbs, 538 U.S. at 725 ("We hold that

employees of the State of Nevada may recover money dam-

ages in the event of the State’s failure to comply with the

family-care provision of the Act."); id. at 737 ("We believe

that Congress’ chosen remedy, the family-care leave provi-

sion of the FMLA, is congruent and proportional to the tar-

geted violation." (internal quotation marks omitted)); id. at

740 ("[W]e conclude that § 2612(a)(1)(C) is congruent and

proportional to its remedial object.").

We note that since Hibbs was decided, each of the four cir-

cuit courts to consider the issue has concluded that Congress

did not validly abrogate sovereign immunity as to the

FMLA’s self-care provision. See Nelson v. Univ. of Tex. at

Dallas, 535 F.3d 318, 321 (5th Cir. 2008); Toeller, 461 F.3d

at 877-79; Touvell, 422 F.3d at 398-405; Brockman, 342 F.3d

at 1164-65. We now join these circuits. Because we hold that

Congress did not validly abrogate the states’ immunity, we

COLEMAN v. MARYLAND COURT OF APPEALS 11

conclude that the district court properly dismissed Coleman’s

FMLA claim as barred by the Eleventh Amendment.

IV.

In sum, holding that Coleman’s complaint fails to state a

Title VII claim for which relief could be granted and that his

FMLA claim is barred by sovereign immunity, we affirm the

district court’s dismissal of Coleman’s action.

AFFIRMED