Zimmer-Rubert v. Board of Ed.

Decision Date05 May 2008
Docket NumberNo. 838, September Term, 2007.,838, September Term, 2007.
Citation947 A.2d 135,179 Md. App. 589
CourtCourt of Special Appeals of Maryland


Appellant, Mireille Zimmer-Rubert, filed suit in the Circuit Court for Baltimore County against appellee, the Board of Education for Baltimore County, to recover $100,000 in compensatory damages for age discrimination based upon the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq. (Supp. III 1994). Pursuant to Maryland Rule 2-322, appellee filed a Motion to Dismiss for insufficiency of service of process, lack of jurisdiction and failure to state a claim upon which relief can be granted. The circuit court granted appellee's motion and dismissed appellant's claim without prejudice. This appeal was thereafter timely noted in which appellant presents the following issues for our review:

I. Whether [appellee] is a local autonomous entity, and not a state agency, making it subject to suit under the [ADEA].

II. Whether the [c]ircuit [c]ourt erred when it determined that [Md.Code Ann., Cts. & Jud. Proc. § 5-518(c) (1974, 2001 Repl.Vol.)]1 did not waive sovereign immunity for [appellee].

For the reasons that follow, we conclude that, although appellee is a state agency, Md.Code Ann., Cts. & Jud. Proc. § 5-518(c) (1974, 2001 Repl.Vol.) constitutes a specific waiver of sovereign immunity for recovery of damages of up to $100,000. Consequently, we shall reverse the judgment of the Circuit Court for Baltimore County and remand for further proceedings.


Born on January 16, 1949, appellant is an experienced educator qualified to teach English, Spanish, German and French. In March of 2004, appellant filed an application to teach foreign language in appellee's high schools. Unsuccessful in her quest to secure a teaching position and, upon learning that young teachers were hired to fill vacant positions for which she was qualified, appellant filed a Charge of Discrimination with the Equal Employment Opportunity Commission. On March 17, 2006, appellant was granted a Right to Sue letter.

Within ninety days, appellant filed a Complaint in the circuit court2 against appellee, alleging age discrimination and "demanding judgment for compensatory damages in the amount of $100,000, attorney fees, pursuant to 29 U.S.C. § 626(b), interest and the costs of [the] action." Appellee subsequently moved to dismiss appellant's suit on the grounds stated supra.

A hearing on appellee's motion was held on May 25, 2007. In a ruling from the bench on that same day, the trial court granted appellee's motion, finding that appellant's ADEA claim was barred by appellee's Eleventh Amendment immunity. Explaining her decision, the trial judge opined that, "on further reflection in looking at [C.J. § 5-518], as well as [Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) ], that the 11th Amendment immunity must be specifically waived, and it's not."


In reviewing a motion to dismiss, "we accept all well-pled facts in the complaint and reasonable inferences drawn from them, in a light most favorable to the non-moving party." Converge Servs. Group, LLC v. Curran, 383 Md. 462, 475, 860 A.2d 871 (2004). We will only find that dismissal was proper "if the alleged facts and permissible inferences, so viewed, would, if proven, nonetheless fail to afford relief to the plaintiff." Sprenger v. Public Serv. Comm'n of Maryland, 400 Md. 1, 21, 926 A.2d 238 (2007). Thus, our task is confined to determining whether the trial court was legally correct in its decision to dismiss. Id.


In a four-prong argument, appellant argues that, when considering the factors for determining whether an entity is an agency of the State for Eleventh Amendment purposes, "the overwhelming and inescapable conclusion is that appellee is not a[S]tate agency, but an autonomous entity not entitled to sovereign immunity protection." Appellee's argument is two-fold. Preliminarily, appellee maintains that the issue sub judice is not properly before us on appeal. Appellee contends, however, that, if we choose to address this issue, the Court of Appeals and the United States District Court for the District of Maryland have consistently held that Maryland school boards are State agencies and, thus, afforded Eleventh Amendment immunity protections.3

Throughout the May 25 hearing and responsive pleadings filed, appellant argued that the General Assembly prohibited the county boards of education from raising the defense of sovereign immunity to any claim of $100,000 or less and, therefore, appellee was barred from asserting Eleventh Amendment immunity. Upon our review of the record, we found no instances in which appellant challenged the "State agency" status of appellee.

Maryland Rule 8-131(a) provides:

Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.

See In re Katherine C., 390 Md. 554, 560, 890 A.2d 295 (2006) (quoting State v. Bell, 334 Md. 178, 189, 638 A.2d 107 (1994)) (The primary purpose of Rule 8-131(a) is "to ensure fairness for all parties in a case and to promote the orderly administration of law.").

Although appellant never raised the issue of whether appellee is a local autonomous entity or a State agency, the trial court, in finding that C.J. § 5-518(c) did not specifically waive Eleventh Amendment immunity, made a threshold assumption that appellee is an "arm of the State."4 See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 141-44, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993) (opining that Eleventh Amendment immunity is only available to states and "state entities").

In order to review the propriety of the trial court's ruling, we must determine whether appellee is a state entity entitled to Eleventh Amendment protections. See Weatherly v. Great Coastal Express Co., 164 Md.App. 354, 367, 883 A.2d 924 (2005) (holding that "critical to our determination of an issue on appeal is the trial court's opportunity to consider the issue"). Furthermore, for this Court to remand the issue sub judice to the trial court for "full consideration" would be a waste of judicial resources. In an effort to avoid the expense and delay of another appeal, we shall determine whether appellee is an arm of the State or a local autonomous entity for the purposes of the Eleventh Amendment.

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 Supreme Court, in its interpretation of the Amendment, has held that it "largely shields [s]tates from suit in federal court without their consent, leaving parties with claims against a[s]tate to present them, if the [s]tate permits, in the [s]tate's own tribunals." Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 39, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994). Similarly, the Court of Appeals has opined, "It was settled over a hundred years ago that the Eleventh Amendment to the United States Constitution provides a state with immunity to claims arising under federal law and asserted by a citizen of that state in federal court." Maryland Military Dep't v. Cherry, 382 Md. 117, 122, 854 A.2d 1200 (2004).

While "[t]he bar of the Eleventh Amendment to suit in federal courts extends to states and state officials," it "does not extend to counties and similar municipal corporations." Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) (internal citations omitted). Only the states themselves or a state agency or instrumentality that functions as an "arm of the state" is entitled to invoke sovereign immunity or the immunity afforded by the Eleventh Amendment. See Regents of the Univ. of California v. Doe, 519 U.S. 425, 429, 117 S.Ct. 900, 137 L.Ed.2d 55 (1997); see also Ram Ditta v. Maryland Nat. Capital Park and Planning Comm'n, 822 F.2d 456, 457 (4th Cir.1987) (holding that, by its terms, the Eleventh Amendment applies only to "one of the United States" and "does not immunize political subdivisions of the state, such as municipalities and counties, even though such entities might exercise a `slice of state power'").

Determining whether appellee is an arm or instrumentality of the State, entitled to the protections of the Eleventh Amendment, or a county or local agency, to which immunity does not apply, requires careful scrutiny. The federal courts have suggested several factors in ascertaining whether an entity is the alter ego of the state. The principal factor, upon which courts have virtually always relied, is whether the state treasury will be responsible for paying any judgment that might be awarded against the entity. Lewis v. Bd. Educ. of Talbot County, 262 F.Supp.2d 608, 612 (D.Md.2003). In the case sub judice, it is clear that a judgment in appellant's favor would not have a direct impact upon the State treasury. Accordingly, our inquiry focuses on three critical factors, which may provide a sufficient nexus between appellee and the State so that appellant's suit against appellee would amount to a suit against the State:

(1) the degree of control that the State exercises over the entity or the degree of autonomy from the State that the entity enjoys; (2) the scope of the entity's concerns-whether local or...

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