McCray v. Md. Dep't of Transp.

Decision Date30 January 2014
Docket NumberNo. 13–1215.,13–1215.
Citation741 F.3d 480
CourtU.S. Court of Appeals — Fourth Circuit


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.

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.

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.


Marie McCray began working for the Maryland Transit Authority, a precursor of the MTA, in 1971.1 Her principal duty 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 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. 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.


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, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). This protection extends to state agencies. See Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 429, 117 S.Ct. 900, 137 L.Ed.2d 55 (1997). Therefore, absent abrogation of sovereign 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, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). Sovereign immunity has not been abrogated for ADEA claims and ADA Title I claims. See id. at 374, 121 S.Ct. 955 (ADA Title I claims); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) (ADEA claims); cf. Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 489–90 (4th Cir.2005) (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, 94 S.Ct. 1347 ([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 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.


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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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...

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