Nader v. Blair

• Decision Date: 12 December 2008
• Docket Number: No. 07-2107.,07-2107.
• Parties: Celeste NADER, Individually and on behalf of a class of State of Maryland Employees similarly situated, Plaintiff-Appellant, v. Floyd R. BLAIR, Esquire; Robert L. Ehrlich, Individually and as Governor; Joseph E. Steffen, Jr.; Christopher J. McCabe; Neil E. Merkel; Heinrich Joseph Losemann, Jr.; Anthony Cobb, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

549 F.3d 953

Celeste NADER, Individually and on behalf of a class of State of Maryland Employees similarly situated, Plaintiff-Appellant, v. Floyd R. BLAIR, Esquire; Robert L. Ehrlich, Individually and as Governor; Joseph E. Steffen, Jr.; Christopher J. McCabe; Neil E. Merkel; Heinrich Joseph Losemann, Jr.; Anthony Cobb, Defendants-Appellees.

No. 07-2107.

United States Court of Appeals, Fourth Circuit.

Argued: October 29, 2008.

Decided: December 12, 2008.

ARGUED: Joseph Schiffer Kaufman, Schulman & Kaufman, L.L.C., Baltimore, Maryland, for Appellant. Julia Doyle Bernhardt, Office of the Attorney General of Maryland, Baltimore, Maryland, for Appellees. ON BRIEF: Douglas F. Gansler, Attorney General of Maryland, David E. Beller, Assistant Attorney General, Office

of the Attorney General of Maryland, Baltimore, Maryland, for Appellees Floyd R. Blair, Esquire, Robert L. Ehrlich, Individually and as Governor, Christopher J. McCabe, Neil E. Merkel, Heinrich Joseph Losemann, Jr., and Anthony Cobb.

Before KING, GREGORY, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge GREGORY wrote the opinion, in which Judge KING and Judge SHEDD joined.

OPINION

GREGORY, Circuit Judge:

Celeste Nader appeals the district court's decision denying her motion for class certification and her motion to strike the Defendants' supporting affidavits, and granting the Defendants' motion for summary judgment on her claims of unconstitutional termination and violations of due process. For the reasons set forth below, we affirm the decision of the district court.

I.

Nader was employed for over thirty-eight years by the Baltimore City Department of Social Services ("BCDSS"), which is a local social-services agency within the Maryland Department of Human Resources ("DHR"). Nader first began working at BCDSS in 1965 as a case worker, and her position was classified as part of the merit system. Nader received several promotions while she was employed at BCDSS, with her final promotion coming in November 2001. As a result of the November 2001 promotion, Nader held the position of Assistant Director of Business Management and Financial Services ("Assistant Director") and was one of six assistant directors who reported directly to the Director of BCDSS. Nader's position was classified as part of the "management service" of the Maryland state personnel system, which meant that she was considered an at-will employee and could be "terminated from employment for any reason, solely in the discretion of the appointing authority." See Md.Code Ann., State Pers. & Pensions § 11-305 (2004 Repl. Vol.). At the time of her promotion, Nader signed a Position Description for the Assistant Director position, which indicated that her position was part of the management service.

According to the Position Description, the main purpose of the position "is to provide leadership, management, control, coordination and monitor the activities and services provided by the Administrative Support Units." (J.A. 26.) The Assistant Director "oversees three major administrative units and subunits," including Budget and Accounting, the Automated Systems Office, and Office Services. (Id.)

The Position Description further describes the "essential job functions" of the Assistant Director and provides a percentage of time or effort that must be devoted to each function. (See id.) The Position Description indicates that twenty percent of the Assistant Director's efforts should be devoted to administration. Among her administrative duties, the Assistant Director is a member of the agency's executive administrative team, and in that capacity she must "plan, coordinate, and evaluate agency operations." (Id.) Moreover, the Assistant Director must "[p]rovide leadership in business activities and inform [the] staff of appropriate policies and procedures." (Id.)

The Position Description allocates another twenty percent of the Assistant Director's time towards budget and accounting duties. The Assistant Director must "[e]nsure that fiscal activities are performed in accordance with federal, state, and local policies, procedures, and strategic plans," as well as "[d]irect fiscal operations of the department including reports, payroll, internal control, bank reconciliation, and collection activities." (Id.) In this capacity, the Assistant Director oversees a staff of eighty-five employees who provide extensive financial support services for the Administrative and Line Units within BCDSS. According to the Position Description, "[t]he budget is the overall responsibility of the [Assistant Director]." (J.A. 27.) Accordingly, the Assistant Director is expected to "[r]epresent all departmental needs and initiatives during budget preparation." (J.A. 36.)

The Assistant Director is expected to devote ten percent of her time towards auditing tasks, which requires her to "[c]oordinate agencywide audit activities with federal, state, legislative and local auditors" and to "[r]epresent [BCDSS] in Annapolis to defend [its] audit reports." (J.A. 30.) After the audits are completed, the Assistant Director must inform the Director's Cabinet of the findings and recommendations and "[p]repare responses to audit findings in a manner that recognizes [the] agency's overall mission and goal...." (J.A. 36.)

Another ten percent of the Assistant Director's efforts are to be devoted to business management activities. According to the Position Description, the Assistant Director must "[c]oordinate agency initiatives and plans with federal, state, local departments and the community" and "[r]epresent the agency city-wide and promote a positive agency image." (J.A. 30.) In addition, the Assistant Director is to act as the BCDSS liaison to the Mayor's Mental Health Committee. In this role, the Assistant Director is to meet with community and agency representatives to make sure that mental health services are available and to make site visits to mental health facilities. Also included among the Business Management Activities are several duties to be performed on the Director's behalf, including "[r]eview[ing] and sign[ing] for [the] Director 600 personnel contracts for contractual employees," "sign[ing] medical consent forms for adults for whom [the] agency has guardianship when emergency medical treatment is needed," and "[h]andl[ing] all issues in the absence of the Director as indicated." (J.A. 31.)

In addition to describing the essential job functions to be performed by the Assistant Director, the Position Description lists the types of work contacts that the Assistant Director is expected to have with other agencies and individuals. The Assistant Director is to have daily contact with state personnel from DHR Operations, the Family Investment Administration, and the Social Services Administration "to discuss relevant issues impacting this department." (J.A. 31.) Moreover, the Assistant Director is to meet weekly with the Mayor of Baltimore or other designated executive staff members "to share information about the department" and to meet weekly with state and local budget and finance staff "to negotiate budget and fiscal activities." (Id.)

Furthermore, the Position Description lists several types of decisions entrusted to the Assistant Director, including "[d]etermining priorities in line with Agency mission goals and objectives as it relates to workload productivity, fiscal processing, etc." (J.A. 32.) With regard to the decisions made by the Assistant Director, she is to receive only "managerial supervision," meaning that the Director of BCDSS would supervise her actions at the least intrusive level. (Id.)

Notwithstanding the job responsibilities listed in the job description, Nader maintains that Floyd R. Blair, who was the Interim Director of BCDSS at the time Nader received her notice of termination, never actually assigned her any tasks that required her to make policymaking decisions. Moreover, Nader alleges that the Position Description did not state that she would make policy decisions, nor did it require any particular political affiliation.

Blair became the Interim Director of BCDSS in August 2003. On November 19, 2003, Blair gave Nader a memorandum in which he terminated her employment effective December 5, 2003. As explanation for the termination, the memorandum stated only that it was due to "changes" Blair was making at BCDSS. (J.A. 14.) The memorandum also notified Nader that pursuant to § 11-113 of the Maryland State Personnel and Pensions Article, she had fifteen days from receipt of the memorandum in which to appeal the termination. The memorandum gave Nader the opportunity to resign in lieu of termination, and Nader ultimately elected that option.

On December 17, 2003, more than fifteen days after receipt of the memorandum, Nader filed an administrative appeal. DHR's Employer-Employee Relations Unit dismissed the appeal, both because it was untimely and because it found that Nader had not met her burden of showing that the termination was illegal or unconstitutional. Nader filed a petition for judicial review of the administrative decision in the Maryland state court system but was unsuccessful, both due to the untimeliness of the initial appeal as well as on the merits of the claim.

Nader next initiated this civil action in the United States District Court for the District of Maryland. Nader brought a class action suit against Blair, former Interim Director of BCDSS; Christopher J. McCabe, former Secretary of the Maryland DHR; Robert L. Ehrlich, Jr., former Governor of Maryland; and other state employees. In Counts I and II of the complaint, Nader alleged that she had been unlawfully terminated based on her political affiliation, in violation of the First and Fourteenth Amendments of the United States Constitution and Article 40 of the Maryland Declaration of Rights. In Count III of the complaint, Nader alleged that the Defendants' conduct also constituted a...