McCray v. Maryland Department of Transportation, Maryland Transit Administration

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-1215

MARIE M. MCCRAY,

Plaintiff - Appellant,

v.

MARYLAND DEPARTMENT OF TRANSPORTATION, Maryland Transit

Administration,

Defendant - Appellee.

Appeal from the United States District Court for the District of

Maryland, at Baltimore. Ellen L. Hollander, District Judge.

(1:11-cv-03732-ELH)

Argued: December 10, 2013 Decided: January 30, 2014

Before KING, GREGORY, and FLOYD, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published

opinion. Judge Gregory wrote the opinion, in which Judge King

and Judge Floyd joined.

ARGUED: John Henry Morris, Jr., LAW OFFICE OF JOHN H. MORRIS,

JR., Baltimore, Maryland, for Appellant. Jennifer L. Katz,

OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland,

for Appellee. ON BRIEF: Douglas F. Gansler, Attorney General

of Maryland, Eric S. Hartwig, Assistant Attorney General, OFFICE

OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for

Appellee.

GREGORY, Circuit Judge:

Appellant Marie McCray worked for the Maryland Transit

Administration (“MTA”), a subsidiary of the Maryland Department

of Transportation (“MDOT”), for nearly four decades before her

position was terminated because of budget cuts. McCray brought

this action in federal district court alleging various forms of

discrimination. The district court dismissed McCray’s suit on

legislative immunity grounds before any meaningful discovery

could be conducted. We find that McCray’s complaint alleges

discriminatory conduct that occurred before any legislative

activity. Because McCray’s case was dismissed before she had

the opportunity to discover evidence necessary to her claims, we

conclude that this dismissal was premature under Rule 56(d) of

the Federal Rules of Civil Procedure. However, we find that

McCray’s age discrimination and disability discrimination claims

are barred by sovereign immunity. We affirm in part, vacate in

part, and remand.

I.

Marie McCray began working for the Maryland Transit

Authority, a precursor of the MTA, in 1971. 1 Her principal duty

1

Because this is an appeal from a summary judgment order,

we present the facts in the light most favorable to the non-

movant. Robinson v. Clipse, 602 F.3d 605, 607 (4th Cir. 2010).

2

was to assemble an annual rider usage report for trains and

buses. For three decades, she worked without incident and

received no complaints from supervisors.

McCray was diagnosed with diabetes in 1995, but the illness

had no effect on her job performance until 2007. In June of

that year, co-workers discovered her after she fainted on the

floor near her desk. She was taken to the hospital in an

ambulance and treated for low blood sugar. She was discharged

the same day and returned to work one week later.

After the incident, McCray’s supervisor hectored her about

her fitness and questioned her ability to work. It is this

supervisor, Michael Deets, whose behavior is the core of

McCray’s claims. Deets confronted McCray ceaselessly, even

after she provided written documentation from her doctors

establishing her medical fitness. Eventually, Deets and a human

resources official demanded that McCray submit to an independent

medical examination. This independent doctor confirmed what

McCray’s doctors found: the diabetes would have no impact on

her work. Nonetheless, Deets continued to plague McCray with

questions about her health.

In January of 2008, McCray’s principal job—the annual usage

report—was transferred to a consultant, and McCray was left

without significant work. Other employees in her unit were

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overwhelmed with work, but when McCray requested more

responsibilities, she was denied.

In October of 2008, McCray was summoned to a meeting with

Deets, who informed her that her position was abolished as part

of a series of budget cuts in Maryland. In 2008, the Governor

and Board of Public Works cut roughly 830 state positions to

meet a budget shortfall.

McCray filed a claim with the United States Equal

Employment Opportunity Commission (“EEOC”), alleging

discrimination under Title I of the Americans With Disabilities

Act (“ADA”), 42 U.S.C. §§ 12101–12113, the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. §§ 621–634, and Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et

seq. She alleged that her position was cut because of

discriminatory animus due to her race, gender, age, and

disability.

Before any meaningful discovery was conducted, the MTA and

MDOT filed a motion to dismiss. The agencies argued that

because McCray’s position was cut pursuant to a state budget

decision, legislative immunity blocked the lawsuit. At this

point, McCray had not had an opportunity to gather information

that was integral to her case. She had no evidence about how

different positions were chosen for elimination, or on how many

individuals with disabilities were employed by the MDOT or MTA.

4

As such, she moved under Rule 56(d) of the Federal Rules of

Civil Procedure for more time to conduct discovery.

The district court converted the MDOT and MTA’s motion into

a motion for summary judgment and then dismissed McCray’s

claims. The court found that because her position was

terminated pursuant to budget cuts, any lawsuit based on that

termination was blocked by legislative immunity. Further, any

discovery that McCray would conduct would be immaterial to the

legislative immunity issue. “Because [McCray’s] proposed

discovery relates to the motives of individual employees within

the MTA and the MDOT,” the district court reasoned, “McCray has

not identified any factual issue pertinent to . . . legislative

immunity” that remained in dispute. J.A. 110. As such, the

court also denied McCray’s 56(d) motion. McCray filed a timely

appeal, and we have jurisdiction under 28 U.S.C. § 1291.

II.

The MDOT and MTA argue that sovereign immunity bars

McCray’s age and disability discrimination claims. This

argument is correct. “[A]n unconsenting State is immune from

suits brought in federal courts by her own citizens.” Edelman

v. Jordan, 415 U.S. 651 (1974). This protection extends to

state agencies. See Regents of Univ. of Cal. v. Doe, 519 U.S.

425, 429 (1997). Therefore, absent abrogation of sovereign

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immunity or consent from Maryland, McCray cannot seek injunctive

or monetary relief from the MDOT or MTA. See Bd. of Trs. of the

Univ. of Ala. v. Garrett, 531 U.S. 356, 363–64 (2001).

Sovereign immunity has not been abrogated for ADEA claims and

ADA Title I claims. See id. at 374 (ADA Title I claims); Kimel

v. Fla Bd. of Regents, 528 U.S. 62 (2000) (ADEA claims); cf.

Constantine v. Rectors & Visitors of George Mason Univ., 411

F.3d 474, 489–90 (recognizing abrogation of sovereign immunity

for Title II claims but not Title I claims). Thus, absent

waiver of sovereign immunity, McCray’s ADEA and ADA claims must

be dismissed.

The MDOT and MTA raise their sovereign immunity argument

for the first time on appeal. McCray argues that the MDOT and

MTA waived this argument. We disagree. Our case law is clear

that “because of its jurisdictional nature, a court ought to

consider the issue of Eleventh Amendment immunity at any time,

even sua sponte.” Suarez Corp. Indus. v. McGraw, 125 F.3d 222,

227 (4th Cir. 1997). The Supreme Court has allowed sovereign

immunity to be claimed for the first time before a Court of

Appeals. Edelman, 415 U.S. at 677–78 (“[T]he Eleventh Amendment

defense sufficiently partakes of the nature of a jurisdictional

bar so that it need not be raised in the trial court.”). There

are limits to how long a state may wait before claiming

immunity. For example, if a state loses a case on the merits

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after extensive discovery has taken place, it is inappropriate

for the state to then claim sovereign immunity. Ku v.

Tennessee, 322 F.3d 431, 435 (6th Cir. 2003). As stressed by

McCray, however, this case has not advanced to the discovery

stage. Given the preliminary stage of the case, it is not too

late for the MDOT and MTA to raise their sovereign immunity

defense, even though it is raised before us for the first time.

Thus, we affirm the district court’s rulings on McCray’s ADEA

and ADA claims, albeit based on sovereign immunity, not

legislative immunity.

III.

For McCray’s remaining Title VII claim, the key question is

whether the district court erred in dismissing McCray’s action

before she could conduct discovery. In general, summary

judgment should only be granted “after adequate time for

discovery.” See Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). Summary judgment before discovery forces the non-moving

party into a fencing match without a sword or mask. For this

reason, when a party lacks material facts necessary to combat a

summary judgment motion, she may file an “affidavit or

declaration that, for specified reasons, [the party] cannot

present facts essential to justify its opposition.” Fed. R.

Civ. P. 56(d). In response, the district court may defer

7

consideration of the summary judgment motion, deny the motion,

or “issue any other appropriate order.” Id.

We review a district court’s 56(d) ruling for abuse of

discretion. Harrods Ltd. v. Sixty Internet Domain Names, 302

F.3d 214, 244 (4th Cir. 2002). A Rule 56(d) motion must be

granted “where the nonmoving party has not had the opportunity

to discover information that is essential to his opposition.”

Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250

n.5 (1986)). Further, such motions are “broadly favored and

should be liberally granted” in order to protect non-moving

parties from premature summary judgment motions. Greater Balt.

Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of

Balt., 721 F.3d 264, 281 (4th Cir. 2013) (quoting Raby v.

Livingston, 600 F.3d 552, 561 (5th Cir. 2010)). 2

Absent the legislative immunity consideration, McCray’s

56(d) motion succeeds with ease. At the time of the summary

judgment motion, McCray had not had the opportunity to depose

supervisors at the MDOT and MTA. She had no information on how

positions were chosen for termination or why other positions

were kept. Without such information, it would be impossible for

her to make an argument that she was fired because of

2

The language of Rule 56(d) appeared in Rule 56(f) before

amendments in 2010, but these amendments made no substantial

change to the rule. Id. at 375 n.6.

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discriminatory reasons. As we have emphasized, 56(d) motions

for more time to conduct discovery are proper in cases such as

this one, where the main issue is one of motive and where most

of the key evidence lies in the control of the moving party.

See Harrods, 302 F.3d at 246–47 (citing Illinois State Employees

Union v. Lewis, 473 F.2d 561, 565–66 (7th Cir. 1972)). Again,

evidence of how defendants selected McCray’s position (and other

positions) for termination go to the crux of McCray’s race

discrimination claims. Absent discovery, she has no adequate

access to this evidence, and therefore no way to shield herself

from a premature summary judgment motion.

Further, many factors counseling against granting a 56(d)

motion are absent here. Non-movants must generally file an

affidavit or declaration before they can succeed on a 56(d)

motion, or if not, non-movants must put the district court on

notice as to which specific facts are yet to be discovered.

Nader v. Blair, 549 F.3d 953, 961 (4th Cir. 2008). In this

case, McCray filed such a declaration and identified the

material she needed to discover. J.A. 93–95. Similarly, non-

movants do not qualify for Rule 56(d) protection where they had

the opportunity to discover evidence but chose not to. Harrods,

302 F.3d at 246 (noting that non-movant was entitled to 56(d)

protection in part because it “was not dilatory in pursuing

discovery”). There is no indication that McCray’s inability to

9

gather evidence was due to her own delay. In sum, if we set the

legislative immunity argument aside, this case is an easy one:

McCray’s 56(d) motion should be granted.

However, as the district court noted, legislative immunity

complicates the issue because the evidence that McCray has yet

to discover “is not material to whether defendants are entitled

to legislative immunity.” J.A. 110. This assertion is correct,

but we nonetheless vacate, because McCray’s complaint alleges

discriminatory actions that occurred well before any legislative

activity. For this reason, this behavior cannot be protected by

legislative immunity, so the Rule 56(d) denial was premature.

A legislative immunity finding is a legal determination

that we review de novo. Kensington Volunteer Fire v. Montgomery

Cnty., 684 F.3d 462, 470–71 (4th Cir. 2012). Legislative

immunity protects those engaged in legislative functions against

the pressures of litigation and the liability that may result.

See E.E.O.C. v. Wash. Suburban Sanitary Comm’n, 631 F.3d 174,

181 (4th Cir. 2011) [hereinafter Washington Suburban]. “The

practical import” of legislative immunity “is difficult to

overstate.” Id. It prevents those who were defeated in

elections from waging political war through litigation. Id. It

promotes a healthier, more thriving class of politicians by

ensuring that legislative offices are not limited only to those

individuals who are willing to withstand a lawsuit. Id.

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The protections of legislative immunity extend beyond

legislators themselves. Bogan v. Scott-Harris, 523 U.S. 44, 49,

55 (1998). The determination of legislative immunity is based

on the function being fulfilled—not the title of the actor

claiming immunity. Kensington, 684 F.3d at 470. Actions that

qualify as legislative “typically involve the adoption of

prospective . . . rules that establish a general policy

affecting the larger population. They also generally bear the

outward marks of public decisionmaking.” Washington Suburban,

631 F.3d at 184 (internal quotations marks, citations and

alteration omitted). Accordingly, this Court has had “no

trouble concluding that enacting a budget is a legislative act.”

See Kensington, 684 F.3d at 471. Also relevant to this case,

the Supreme Court has noted that “the termination of a position

. . . unlike the hiring or firing of a particular employee, may

have prospective implications” and is therefore more likely to

be legislative. Bogan, 513 U.S. at 56. In this case, both

parties accept that McCray’s position was terminated due to

budget-making. 3

3

The government action in this case was carried out by the

Governor and Board of Public Works—not the legislature. By

statute, Maryland law allows for limited budget cuts by action

of the Governor and Board of Public works. Md. Code Ann., State

Fin. & Proc. § 7-213(a). The Maryland constitution gives the

governor a central role in cutting the budget when revenue falls

short. Judy v. Schaefer, 627 A.2d 1039, 1049 (Md. 1993). One

(Continued)

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Finally, and most helpful to the MDOT and MTA, our case law

shows that legislative immunity extends to those individuals who

advise legislators. Kensington, 684 F.3d at 471; Baker v. Mayor

& City Council of Balt., 894 F.2d 697, (4th Cir. 1990) (applying

legislative immunity to a government department that recommended

that a position be cut pursuant to a mayor’s request), overruled

on other grounds by Berkley v. Common Council of the City of

Charleston, 63 F.3d 295, 303 (4th Cir. 1995); see also Baraka v.

McGreevey, 481 F.3d 187, 196–97 (3d Cir. 2007) (holding that

governor’s appointee’s actions in “advising and counseling

Governor McGreevey and the Legislature are also legislative” and

protected under legislative immunity). This case law stands for

the proposition that just as a legislator is immune from

discrimination lawsuits when she makes budget decisions based on

improper animus, aides to that legislator are also immune.

Legislative immunity is a shield that protects despicable

motives as much as it protects pure ones. For this reason, the

district court’s conclusion is correct insofar as it shields the

could argue that the budget cuts were therefore executive in

nature, not legislative. We need not decide this thorny

question, however, because our holding that the Rule 56(d)

motion should have been granted rests on our finding that

McCray’s lawsuit targets discrimination that occurred before any

legislative activity occurred.

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MTA and MDOT from lawsuit based on the counsel they gave

executive officials in Maryland who carried out the budget cuts.

Nonetheless, we vacate and remand because the complaint

alleges discriminatory actions that took place before the

legislative activity began. Our ruling in Washington Suburban

guides our decision today. In that case, former municipal

employees brought an age discrimination claim with the EEOC

against a local government agency, the Washington Suburban

Sanitation Commission (“WSSC”). Washington Suburban, 631 F.3d

at 177. In late 2005, the WSSC’s Chief Information Officer

conducted an assessment of the Information Technology department

and concluded that it should be restructured, with several

positions eliminated. Id. The restructuring required an

increased budget, so WSSC executives met in 2006 and agreed to

submit the new proposed budget to local legislators. Id. These

legislators met to discuss the budget and sought advice from

WSSC executives. Id. The legislators ultimately reached no

decision on the proposal, which allowed the restructuring to go

into effect by operation of law. Id.

The EEOC investigated the WSSC and requested information

about how the Chief Information Officer selected positions for

termination. This Court allowed the subpoena to be enforced.

Id. at 185. Part of the basis for our decision was that the

EEOC’s investigation was aimed at discriminatory actions taken

13

prior to and after the restructuring. Id. at 183. “In

particular, the EEOC can continue with its stated current

investigatory goals—determining whether WSSC discriminated in

distributing training prior to the restructuring and whether it

discriminated in hiring after the restructuring.” Id.

Inquiries into how the WSSC developed its budget would be

problematic, as would inquiries into the legislators’

deliberations on the proposal, because these actions were

legislative ones that were protected by legislative immunity.

Id. at 183–84. We upheld the subpoena, however, because the

investigation was aimed at discriminatory behavior prior to and

after these legislative actions.

As in Washington Suburban, McCray alleges discriminatory

behavior that occurred before any legislative action took place.

Per her complaint, her supervisor at the MTA stripped her of

responsibilities in the years leading up to budget cuts. Even

though her department was overwhelmed with work, her supervisor

refused to give McCray additional responsibilities, even after

she asked for more work. Thus, by the time of the 2008 budget

crisis which led to the termination of McCray’s position, Deets’

actions had already made McCray vulnerable and therefore

adversely affected her. McCray alleges her termination was a

foregone conclusion because her supervisor—driven by

discriminatory animus—stripped her of her duties. Had the

14

legislature simply terminated McCray’s position, that action

would be shielded by legislative immunity. Similarly, if

McCray’s supervisors advised the legislature to terminate her

position because of discriminatory animus, this too would be

protected by legislative immunity. In this case, however,

McCray’s allegation is that she was subject to discriminatory

adverse employment actions that made her position vulnerable to

the budget cuts that eventually came, and she alleges that these

actions were taken before any legislative activity. See Crady

v. Liberty Nat. Bank & Trust Co. of Ind., 993 F.2d 132, 136 (7th

Cir. 1993) (defining a tangible employment action for ADEA

purposes as including an employer giving an employee

“significantly diminished material responsibilities”) (cited

with approval in Burlington Indus, Inc. v. Ellerth, 524 U.S.

742, 761 (1998)). Put another way, the basis of McCray’s

lawsuit is not the financial storm that rocked the state and

forced Maryland’s government to scale back its budget. Rather,

her claim is that the MTA and MDOT gave her a lightning rod to

hold and sent her to the roof.

This case presents a more difficult situation than

Washington Suburban, which involved a subpoena during an initial

investigation, rather than a lawsuit. We explicitly noted this

distinction in Washington Suburban. “The threat to legislative

immunity and privilege in [full-blown lawsuits] is more acute

15

than it is here.” Washington Suburban, 631 F.3d at 182–83.

However, the importance of this point in Washington Suburban

lends support to our ruling here. We drew attention to the

early stage of the proceedings in that case because it was

unclear whether the investigation would ever ripen into a case

threatening legislative immunity. Id. at 183 (“We also cannot

assume the EEOC’s investigation will follow the path WSSC

projects.”). In other words, a legislative immunity holding is

premature if the case might evolve in a way that poses no threat

to legislators. McCray’s case is far past the investigatory

stage, but it focuses on behavior occurring before any

legislative action. Thus, while the case here has advanced

beyond the stage considered in Washington Suburban, the cases

are similar because McCray’s lawsuit has not yet implicated

legislative immunity and need not develop in a way that would

pose a threat to legislators.

In sum, we conclude that the Rule 56(d) motion should have

been granted because McCray’s lawsuit is aimed at discrimination

that occurred before any legislative activity began. This is

crucial to our 56(d) holding, because if legislative immunity

were to apply, then the discovery that McCray requests would be

irrelevant: her lawsuit would be barred regardless of whether

the MDOT and MTA helped terminate her position because of

discriminatory animus. However, because McCray’s lawsuit

16

alleges discrimination occurring before any legislative

activity, the summary judgment dismissal was premature.

IV.

Because summary judgment was granted before Appellant had a

chance to discover facts essential to her claim, and she alleged

discrimination occurring before any legislative activity, the

district court’s Rule 56(d) denial was an abuse of discretion.

However, we find that the district court’s dismissal of McCray’s

ADA and ADEA claims are supported by sovereign immunity.

Accordingly, this case is

AFFIRMED IN PART,

VACATED IN PART,

AND REMANDED.

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