Marie McCray v. Maryland Dept of Transp

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:11-cv-03732-ELH Copies to all parties and the district court/agency. [999960345].. [14-2117]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-2117

MARIE M. MCCRAY,
Plaintiff – Appellant,
v.
MARYLAND DEPARTMENT
Administration,

OF

TRANSPORTATION,

Maryland

Transit

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:

September 20, 2016

Decided:

November 2, 2016

Before GREGORY, Chief Judge, and KING and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: John Henry Morris, Jr., Baltimore, Maryland, for
Appellant. Jennifer L. Katz, OFFICE OF THE ATTORNEY GENERAL OF
MARYLAND, Baltimore, Maryland, for Appellee. ON BRIEF: Brian E.
Frosh, Attorney General of Maryland, Eric S. Hartwig, Assistant
Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND,
Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
On

remand

from

this

Court

for

further

proceedings

with

respect to Marie M. McCray’s Title VII claim, see McCray v. Md.
Dep’t of Transp., 741 F.3d 480 (4th Cir. 2014), the district
court dismissed that claim as both unexhausted and time-barred,
see McCray v. Md. Dep’t of Transp., No. 1:11-cv-03732 (D. Md.
Sept. 16, 2014), ECF Nos. 50-51.
court

dismissed

as

untimely

Additionally, the district

separate

claims

that

McCray

had

newly alleged under the Maryland Fair Employment Practices Act
(the “MFEPA”).

McCray now appeals from those dismissals of her

Title VII and MFEPA claims.

As explained below, although we

reject the district court’s ruling that the Title VII claim is
unexhausted, we affirm its dismissals of the Title VII and MFEPA
claims because they are time-barred.

I.
McCray’s factual allegations are more fully recounted in
our prior decision.
McCray
“MTA”),

worked
a

for

See McCray, 741 F.3d at 481-82.
the

subsidiary

Maryland
of

Transit

the

In sum,

Administration

Maryland

Department

(the
of

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

was

terminated

in

October

2008

by

the

Governor

and

Board of Public Works as part of a series of state budget cuts.

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McCray, an African-American woman, was sixty-four years old and
diabetic when she lost her job with the MTA.
In

December

2011,

after

receiving

a

right-to-sue

letter

from the Equal Employment Opportunity Commission (the “EEOC”),
McCray initiated this action against the MTA and MDOT in the
District of Maryland.

McCray’s original Complaint alleged her

Title VII claim, premised on race and gender discrimination, as
well as claims under the Age Discrimination in Employment Act
(the

“ADEA”)

“ADA”).

and

Before

the
any

Americans
meaningful

with

Disabilities

discovery

was

Act

conducted,

(the
the

defendants invoked legislative immunity, and the district court
awarded summary judgment to the defendants on that basis.

See

McCray v. Md. Dep’t of Transp., No. 1:11-cv-03732 (D. Md. Jan.
16, 2013), ECF Nos. 18-19.
McCray appealed, and by our prior decision, we affirmed the
award of summary judgment to the defendants on the ADEA and ADA
claims.

See McCray, 741 F.3d at 483 (“[W]e affirm the district

court’s rulings on McCray’s ADEA and ADA claims, albeit based on
sovereign immunity, not legislative immunity.”).

With respect

to the Title VII claim, we recognized that the defendants are
entitled to legislative immunity “insofar as it shields the MTA
and MDOT from lawsuit based on the counsel they gave executive
officials in Maryland who carried out the budget cuts.”
485.

Id. at

We further concluded, however, that vacatur and remand
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were

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appropriate

as

to

the

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Title

VII

claim,

because

the

Complaint alleged “discriminatory actions that took place before
the legislative activity began.”
regard

relied

on

allegations

Id.

that,

Our conclusion in that

“driven

by

discriminatory

animus,” McCray’s supervisor at the MTA had “stripped her of
responsibilities
rendering

“her

in

the

position

eventually came.”

years

leading

vulnerable

to

up
the

to

budget

budget

cuts,”

cuts

that

Id. at 486.

After our remand, in March 2014, McCray filed an Amended
Complaint that re-alleges her Title VII claim and adds the MFEPA
claims.

The district court granted the defendants’ subsequent

motion to dismiss those claims pursuant to Rule 12(b)(1) and (6)
of

the

Federal

Rules

appeal.

Because

district

court

the
is

of

Civil

Procedure,

dismissals
finished

were

with

precipitating

with
the

jurisdiction pursuant to 28 U.S.C. § 1291.

prejudice
case,

we

and

this
the

possess

See GO Comput., Inc.

v. Microsoft Corp., 508 F.3d 170, 176 (4th Cir. 2007). 1

1

The Amended Complaint also includes claims under the ADEA,
the ADA, and the Rehabilitation Act — all of which were
dismissed with prejudice by the district court.
McCray has
abandoned any contention that those dismissals were erroneous,
because she raised no such contention in her opening appellate
brief.
See A Helping Hand, LLC v. Balt. Cty., Md., 515 F.3d
356, 369 (4th Cir. 2008).

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II.
Where

a

district

court

dismisses

a

Title

VII

claim

as

unexhausted under Federal Rule of Civil Procedure 12(b)(1), we
review the court’s ruling de novo.

See Balas v. Huntington

Ingalls Indus., Inc., 711 F.3d 401, 406 (4th Cir. 2013).

We

also review de novo a district court’s Rule 12(b)(6) dismissal
of a claim as being time-barred.

See Pressley v. Tupperware

Long Term Disability Plan, 553 F.3d 334, 336 (4th Cir. 2009).

III.
A.
We first reject the district court’s ruling that McCray’s
Title VII claim is unexhausted.

As we have explained, “[b]efore

filing

a

suit

under

Title

VII,

plaintiff

must

exhaust

her

administrative remedies by bringing a charge with the EEOC.”
See Smith v. First Union Nat’l Bank, 202 F.3d 234, 247 (4th Cir.
2000).

The

EEOC

charge

must

be

“sufficiently

precise

to

identify the parties, and to describe generally the action or
practices

complained

plaintiff

may

then

of.”

See

advance

29

any

C.F.R.
Title

§ 1601.12(b).
VII

claims

in

The
her

subsequent civil suit that “are reasonably related to her EEOC
charge

and

can

be

expected

administrative investigation.”

to

follow

from

a

reasonable

See Smith, 202 F.3d at 247.

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The

crux

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of

McCray’s

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Title

VII

claim,

as

we

heretofore

explained, “is not the financial storm that rocked the state and
forced

Maryland’s

government

to

scale

back

its

budget,”

but

“that the MTA and MDOT gave her a lightning rod to hold and sent
her

to

the

roof.”

See

McCray,

741

F.3d

at

486.

McCray

exhausted that claim by alleging in her EEOC charge that, more
than

a

year

before

her

termination

in

October

2008,

her

supervisor “tried to get rid of [her]” and then “harassed [her]
daily . . . about [her] ability to work.”
is,

the

Amended

Complaint

makes

clear

See J.A. 51. 2
that

the

That

harassment

alleged in the EEOC charge included the elimination of McCray’s
job

responsibilities.

“lightning

rod”

termination

by

claim
being

Accordingly,
(that

McCray’s

Title

VII

she

stripped

was

left

vulnerable

to

of

her

responsibilities)

is

reasonably related to the allegations in her EEOC charge (that
her

supervisor

had

harassed

and

sought

to

discharge

her).

Moreover, the “lightning rod” claim can be expected to follow
from

a

reasonable

administrative

investigation.

In

these

circumstances, the district court erred in deeming that claim to
be unexhausted.

2

Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.

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B.
Nonetheless, we affirm the district court’s dismissals of
McCray’s Title VII and MFEPA claims because they are all timebarred.

In the circumstances of this matter, Title VII provides

that an EEOC charge must be filed “within three hundred days
after the alleged unlawful employment practice occurred.”
42 U.S.C. § 2000e-5(e)(1).

See

Under the pertinent regulations,

[a] charge may be amended to cure technical defects or
omissions, . . . or to clarify and amplify allegations
made therein. Such amendments and amendments alleging
additional acts which constitute unlawful employment
practices related to or growing out of the subject
matter of the original charge will relate back to the
date the charge was first received.
See 29 C.F.R. § 1601.12(b).

We have recognized, however, that

an amendment alleging a new theory of recovery generally will
not relate back to the original filing date.

See Evans v.

Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir.
1996).

That is because — using the example of an EEOC charge

that initially asserted sex discrimination and then is amended
to

allege

age

—

discrimination

“age

discrimination

does

necessarily flow from sex discrimination and vice versa.”

not
Id.

Additionally, “Title VII and ADEA claims arise from completely
distinct statutory schemes.”

Id.

When McCray filed her EEOC charge in June 2009, she alleged
only age discrimination, in contravention of the ADEA.
50.

See J.A.

It was not until September 2010 — nearly two years after
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her termination from the MTA — that McCray amended the EEOC
charge to allege race and gender discrimination, in violation of
Title VII.

Id. at 51.

Because that amendment does not, under

our Evans decision, relate back to the original filing date, the
district court properly dismissed the Title VII claim as being
time-barred.
Meanwhile, the MFEPA provides that a complainant may bring
a civil action alleging an unlawful employment practice if three
requirements are satisfied:
(1)

the
complainant
initially
filed
a
timely
administrative
charge
or
a
complaint
under
federal, State, or local law . . . ;

(2)

at least 180 days have elapsed since the filing
of the administrative charge or complaint; and

(3)

the civil action is filed within 2 years after
the
alleged
unlawful
employment
practice
occurred.

See Md. Code, State Gov’t § 20-1013(a)(1)-(3).

By using the

conjunctive word “and,” the MFEPA is unambiguous — all three of
those requirements must be met.
Here,

neither

Complaint

adding

years

her

of

the

original

McCray’s

termination

MFEPA
from

Complaint
claims

the

was

MTA.

nor
filed
As

a

the

Amended

within

two

result,

the

district court properly dismissed those claims as untimely, and
the court’s ruling must be sustained.

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IV.
Pursuant to the foregoing, we affirm the judgment of the
district court.
AFFIRMED

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