Brilliant Semenova v. MD Transit Administration
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 1:14-cv-03413-JFM. [1000000775]. [15-2125]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-2125
BRILLIANT SEMENOVA,
Plaintiff - Appellant,
v.
MARYLAND TRANSIT ADMINISTRATION,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore.
J. Frederick Motz, Senior District
Judge. (1:14-cv-03413-JFM)
Argued:
December 8, 2016
Decided:
January 10, 2017
Before TRAXLER, FLOYD, and THACKER, Circuit Judges.
Reversed and remanded by published opinion. Judge Thacker wrote
the opinion, in which Judge Floyd joined. Judge Traxler wrote a
dissenting opinion.
ARGUED: Joel Robert Zuckerman, MAXWELL BARKE & ZUCKERMAN LLC,
Rockville, Maryland, for Appellant.
Julie Theresa Sweeney,
OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland,
for Appellee.
ON BRIEF: James S. Maxwell, MAXWELL BARKE &
ZUCKERMAN LLC, Rockville, Maryland, for Appellant.
Brian E.
Frosh, Attorney General, Jennifer L. Katz, Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore,
Maryland, for Appellee.
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THACKER, Circuit Judge:
Brilliant
Transit
with
Semenova
Administration
(“Appellant”)
(“Appellee”)
Disabilities
Act
sued
pursuant
(“ADA”),
the
to
the
alleging
Maryland
Americans
disability
discrimination in its provision of public services.
The ADA
does not include a statute of limitations, so the district court
applied
the
two-year
statute
of
limitations
from
Maryland’s
Anti-Discrimination Law (the “Maryland Law”) and dismissed the
suit as untimely.
But because the Maryland Law does not contain
a cause of action for disability discrimination in the provision
of public services, the closer state-law analog to Appellant’s
claim is a general civil action, which is subject to a threeyear
statute
statute
complaint
of
of
limitations.
limitations,
here
alleges
we
Applying
reverse
discrimination
this
and
more
remand
occurring
analogous
because
within
the
three
years of its filing.
I.
On October 30, 2014, Appellant filed a complaint in
the United States District Court for the District of Maryland
alleging Appellee violated Title II of the ADA in operating its
commuter
bus
service. 1
Appellant
1
alleges
that
although
she
Title II applies to public entities, including state and
local governments and their instrumentalities, see 42 U.S.C.
§ 12131(1), and prohibits disability discrimination in the
(Continued)
2
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suffers from cerebral palsy and uses a walker or crutches, “[o]n
numerous occasions, beginning in or about October, 2011 . . .
and continuing through 2012,” bus operators refused to use an
assistance lift or otherwise assist her in boarding the bus.
J.A. 7. 2
Because she relied on the bus to attend classes at the
Community College of Baltimore County, Appellant alleges, this
discrimination forced her withdrawal from school “in the summer
of 2012.”
Id. at 8.
Appellee
arguing
that
moved
because
to
the
dismiss
ADA
does
on
not
timeliness
provide
a
grounds,
statute
of
limitations, ADA claims brought in Maryland are subject to the
two-year statute of limitations found in the Maryland Law; and
the last alleged discriminatory act was over two years before
Appellant filed her complaint.
Appellant responded that her
complaint was timely because Maryland’s three-year statute of
limitations for general civil actions applies to her claim.
In
response,
the
district
court
issued
a
one-page
memo, containing only one paragraph explaining why it sided with
Appellee, and dismissed Appellant’s complaint.
Without further
provision of public transportation services, see § 12132; 49
C.F.R. § 37.5.
2
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
3
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illumination, the district court acknowledged that the Maryland
Law “does not expressly apply to disability claims related to
public accommodations” but nevertheless concluded, “the Fourth
Circuit would find the two year limitations period [contained in
the
Maryland
Appellant’s
Law]
claim.
to
be
J.A.
the
one
36.
In
that
a
should”
separate
apply
order
to
without
further reasoning, the district court dismissed the complaint as
untimely.
This appeal followed.
II.
We review de novo dismissal pursuant to Federal Rule
of Civil Procedure 12(b)(6), assuming as true the complaint’s
factual allegations and construing “all reasonable inferences”
in favor of the plaintiff.
Belmora LLC v. Bayer Consumer Care
AG, 819 F.3d 697, 702 (4th Cir. 2016) (internal quotation marks
omitted).
A court may grant a 12(b)(6) motion on statute of
limitations grounds only “if the time bar is apparent on the
face of the complaint.”
Dean v. Pilgrim’s Pride Corp., 395 F.3d
471, 474 (4th Cir. 2005).
III.
Because Title II of the ADA does not contain a statute
of
limitations,
federal
courts
“borrow
the
state
statute
of
limitations that applies to the most analogous state-law claim.”
A Soc’y Without A Name v. Virginia, 655 F.3d 342, 347 (4th Cir.
2011).
Although
“the
most
analogous
4
statute
need
not
be
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identical,”
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state
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legislation
containing
a
statute
of
limitations will only control if it provides substantially “the
same rights and remedies” as the ADA.
Wolsky v. Med. Coll. of
Hampton Roads, 1 F.3d 222, 224–25 (4th Cir. 1993).
Without
A
Name
applicable
Virginia.
v.
Virginia,
limitations
for
period
example,
for
ADA
See 655 F.3d at 347–48.
we
In A Society
considered
claims
brought
the
in
We held that the one-year
statute of limitations in the Virginia Rights of Persons with
Disabilities
Act
pronouncement
statute
ADA.
“shall
that
be
applies,
given
regulations
consistent,
the
state
promulgated
whenever
law’s
pursuant
applicable,”
express
to
the
with
the
Id. at 348 (quoting Va. Code. Ann. § 51.5–40).
Given the substantially similar language between the
ADA and the Rehabilitation Act, see A Soc’y Without A Name, 655
F.3d at 347, we have applied the same analysis to determine the
applicable statute of limitations for Rehabilitation Act claims.
Thus, in Wolsky v. Medical College of Hampton Roads, we held
that
the
statute
of
limitations
in
the
Virginia
Rights
of
Persons with Disabilities Act also applies to Rehabilitation Act
claims brought in Virginia, instead of the more general statute
of limitations for personal injury claims.
See 1 F.3d at 225.
We deemed the Virginia law an “exact state law counterpart” to
the Rehabilitation Act because it tracks the language of the
federal law, requires regulations promulgated pursuant to state
5
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law to be consistent with the federal law, and affords the same
remedies as the federal law.
Id. at 224–25.
Similarly, in McCulloch v. Branch Banking & Trust Co.,
we held that the 180-day statute of limitations in the North
Carolina
Handicapped
Persons
Protection
Act
applies
Rehabilitation Act claims brought in that state.
127, 132 (4th Cir. 1994).
to
See 35 F.3d
In so holding, we relied in part on
the statute’s prohibition of the same type of discrimination
alleged in the underlying complaint.
See id. at 130.
Critically, however, the Maryland Law does not provide
Appellant “the same rights and remedies” as the ADA because it
does not provide a cause of action for disability discrimination
in the provision of public services.
Wolsky, 1 F.3d at 224.
Rather, the closer state-law analog to such an ADA claim is
Maryland’s
more
general
statute
of
limitations,
requiring
plaintiffs to file civil actions “within three years from the
date it accrues unless another provision of the Code provides”
otherwise.
Md. Code Ann., Cts. & Jud. Proc. § 5-101; see A
Soc’y Without A Name, 655 F.3d at 347.
In A Society Without A Name, Wolsky, and McCulloch, we
applied
least
state
in
claims
alleged
statutes
part,
for
the
pursuant
because
same
to
of
limitations
the
type
federal
relevant
of
to
federal
state
laws
discrimination
law.
6
See
N.C.
claims,
also
the
Gen.
at
allowed
plaintiffs
Stat.
Ann.
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§§ 168A-5(a) (prohibiting disability employment discrimination),
-11
(creating
protected
by
“civil
this
(prohibiting
action
to
chapter”);
disability
enforce
Va.
rights
Code.
discrimination
Ann.
in
granted
§§
or
51.5-40,
programs
receiving
state funding), –46 (creating cause of action to enforce “the
rights set forth in this chapter”).
broad
enforcement
Maryland
Law
(creating
mechanisms
these
recognizes
causes
only
circumstances.
statutes
of
include,
action
in
the
limited
See, e.g., Md. Code Ann., State Gov’t § 20–1035
cause
discrimination);
disability
In stark contrast to the
of
§
action
20-1013
employment
for
disability
(creating
cause
discrimination).
of
housing
for
although
And
action
the
Maryland Law allows claims based on local anti-discrimination
laws in Howard, Montgomery, and Prince George’s Counties, which
prohibit discrimination in public accommodations, see § 20–1202;
Md.,
Howard
Cty.
Code
§
12.210;
Md.,
Montgomery
Cty.
Code,
§§ 27-10, -11; Md., Prince George’s Cty. Code §§ 2–186, 2–220,
we
are
not
tasked
with
finding
the
closest
federal law, but the closest state analog.
local
analog
to
See A Soc’y Without
A Name, 655 F.3d at 347.
Further,
the
holding
below
was
an
outlier
in
the
District of Maryland, which has held time and again that ADA
claims
are
subject
to
Maryland’s
three-year
limitations governing general civil actions.
7
statute
of
See, e.g., Innes
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v. Bd. of Regents of Univ. Sys. of Md., 29 F. Supp. 3d 566, 572
(D. Md. 2014); Schalk v. Associated Anesthesiology Practice, 316
F. Supp. 2d 244, 251 (D. Md. 2004); Ross v. Bd. of Educ. of
Prince George’s Cty., 195 F. Supp. 2d 730, 735 n.2 (D. Md.
2002); Speciner v. NationsBank, N.A., 215 F. Supp. 2d 622, 634
(D. Md. 2002); Kohler v. Shenasky, 914 F. Supp. 1206, 1211 (D.
Md. 1995).
Although the District of Maryland decided most of
these cases before recent amendments to the Maryland Law that
created
a
cause
of
action
for
disability
employment
discrimination, see H.B. 54, 2009 Leg., 426th Sess. (Md. 2009)
(codified as amended at Md. Code Ann., State Gov’t § 20–1035),
and
expanded
protections
for
persons
with
disabilities
or
records of disability, see H.B. 393, 2009 Leg., 426th Leg., (Md.
2009)
(codified
as
amended
at
§§
20-601,
-603,
-606),
those
amendments did nothing to modify the rights and remedies of a
plaintiff in Appellant’s shoes who alleges discrimination in the
provision of public services.
Thus, we hold that Appellant’s claim is subject to a
three-year statute of limitations.
the
complaint
alleges
We need not decide whether
discrimination
occurring
as
Appellant
argues, “through [the end of] 2012,” or, as Appellee argues, no
later
than
school.
2014,
the
summer
of
2012
when
Appellant
withdrew
from
Because Appellant filed her complaint on October 30,
either
date
would
fall
within
8
the
three-year
filing
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The district court thus erred by dismissing Appellant’s
claim as untimely.
IV.
For
the
foregoing
reasons,
we
reverse
the
district
court’s dismissal and remand for further proceedings.
REVERSED AND REMANDED
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TRAXLER, Circuit Judge:
I
respectfully
dissent.
In
my
view
the
district
court
correctly applied a two-year limitations period to Semenova’s
ADA claim, and I would affirm the district court’s dismissal of
her complaint.
Because Title II of the ADA 1 does not contain a statute of
limitations,
courts
“borrow
the
state
statute
of
limitations
that applies to the most analogous state-law claim.”
A Society
Without a Name v. Virginia, 655 F.3d 342, 347 (4th Cir. 2011).
The reason courts adopt the statute governing the most analogous
state-law cause of action is critical.
The tradition “is based
on a congressional decision to defer to ‘the State’s judgment on
the
proper
balance
between
the
policies
of
repose
and
the
substantive policies of enforcement embodied in the state cause
of
action.’”
Hardin
v.
Straub,
490
U.S.
536,
538
(1989)
(quoting Wilson v. Garcia, 471 U.S. 261, 271 (1985)).
In
my
view,
the
Maryland
legislature
has
expressed
its
judgment in very clear terms on the proper balance to be struck.
Maryland statutory law provides private causes of action for
many
types
of
discrimination
1
–
including
See Americans with Disabilities
amended, 42 U.S.C. §§ 12131-12165.
10
Act
disability
of
1990,
as
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discrimination.
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In each case, the legislature has provided that
the statute of limitations is two years.
Indeed, claims made
under several such Maryland statutes are closely analogous to
Title II claims.
See, e.g., Md. Code, State Gov’t §§ 20-705 –
20-707, 20-1035 (housing discrimination); Md. Code, State Gov’t
§§ 20-606, 20-1009, 20-1013 (employment discrimination).
Most
analogous, in my view, however, are claims under § 20-1202 of
Maryland’s State Government Code.
That statute provides for
private causes of action “for damages, injunctive relief, or
other civil relief” for violations of the anti-discrimination
laws of Howard, Montgomery, and Prince George’s Counties, each
of
which
prohibit
discrimination
–
including
disability
discrimination – in places of public accommodation, see Howard
Cty.
Code
§ 12.210;
George’s
Cty.
Code
Maryland
legislature
Mont.
Cty.
§§ 2-186,
that
a
Code
2-220.
two-year
§§ 27-10,
The
27-11;
decision
statute
of
Prince
of
the
limitations
applies to such state-law actions leaves no doubt concerning
what balance the Maryland legislature would strike regarding the
appropriate limitations period for Title II actions. 2
2
At oral argument, Semenova maintained that a cause of
action under § 20-1202 could not possibly be the most analogous
state-law cause of action because a § 20-1202 action must be
based on the violation of county discrimination law. But it is
hard to understand Semenova’s point.
Section 20-1202 is a
Maryland statute creating a Maryland cause of action aimed at
providing redress for victims of disability discrimination that
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Semenova has not identified any difference between § 201202 claims and Title II claims that that would give us any
reason
to
regarding
would
doubt
the
apply
Semenova’s
analogous
that
proper
just
only
cause
the
limitations
as
well
argument
of
Maryland
action
to
is
period
Title
that
legislature’s
for
II
the
§ 20-1202
actions.
§ 20-1202
that
judgment
is
not
facts
claims
Indeed,
the
alleged
in
most
her
complaint would not state a claim under § 20-1202, because the
discrimination she alleged did not occur in one of the three
counties
to
which
§ 20-1202
applies. 3
But
this
argument
misunderstands the role that § 20-1202 plays in our analysis.
The similarity of a § 20-1202 cause of action to one brought
under Title II matters because of what it reveals about the
Maryland
legislature’s
judgment
concerning
the
balance
it
favored regarding considerations of repose; it has nothing to do
would not otherwise be available.
See Edwards Sys. Tech. v.
Corbin, 841 A.2d 845, 857-58 (Md. 2004) (regarding statutory
predecessor to § 20-1202).
And it was the Maryland state
legislature that decided that a two-year limitations period
would apply to such actions.
See Md. Code, State Gov’t § 201202(c)(1).
3
Maryland statutory law prohibits public-accommodations
disability discrimination throughout the state, see Md. Code,
State Gov’t § 20-304, but does not provide for a private right
of action for violation of this statewide ban.
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with the question of whether Semenova herself could have brought
a § 20-1202 claim.
Furthermore, regarding the determination of the appropriate
limitations
period,
it
is
unlikely
Congress
would
have
sanctioned a construction of the ADA under which the length of
the statute of limitations would depend upon “an analysis of the
particular
facts
of
each
claim,”
as
such
an
approach
would
“inevitably breed[] uncertainty and time-consuming litigation.”
Wilson, 471 U.S. at 272; see id. at 272-75.
Rather, “[t]he
federal interests in uniformity, certainty, and the minimization
of
unnecessary
litigation
all
support
the
Congress favored” a less fact-specific approach.
conclusion
that
Id. at 275.
Semenova argues that despite the obvious close similarities
between
Title
II
claims
and
those
made
under
§ 20-1202,
the
three-year statute governing general civil actions, § 5-101 of
the
Maryland
Courts
and
Judicial
provides a closer analogue.
Proceedings
Code,
actually
But we rejected a very similar
argument in McCullough v. Branch Banking & Trust Co., 35 F.3d
127 (4th Cir. 1994).
In that case, the plaintiff brought suit
against his employer claiming that he was terminated because of
his handicap in violation of § 504 of the Rehabilitation Act.
See
McCullough,
35
F.3d
at
128.
Like
the
ADA,
the
Rehabilitation Act provides no statute of limitations; thus, we
were required to decide which state limitations period applied.
13
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See
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id.
at
applicable
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129.
to
The
claims
Pg: 14 of 17
employer
under
favored
the
North
the
180-day
Carolina
Persons Protection Act (the “North Carolina Act”).
period
Handicapped
See id.
The
plaintiff, on the other hand, preferred the three-year period
generally applicable to wrongful-discharge actions.
See id. at
131.
We agreed with the employer.
doing,
we
acknowledged
that,
for
See id. at 130-32.
several
reasons,
Carolina Act was by no means a perfect analogue:
In so
the
North
(1) the North
Carolina Act provides for a bench trial while the Rehabilitation
allows for jury trials; (2) while the Rehabilitation Act allows
for full compensatory and punitive damages, the North Carolina
Act
allows
only
Rehabilitation
injunctive
Act,
unlike
relief
the
and
North
back
pay;
(3)
the
Carolina
Act,
does
not
extend or base coverage upon receipt of state assistance; and
(4) the Rehabilitation Act, unlike the North Carolina Act, does
not require the employee to notify the employer of his or her
disability and to make accommodation suggestions and cooperate
in evaluating possible accommodations.
Nevertheless,
we
rejected
the
See id. at 131.
plaintiff’s
argument
that
these distinctions kept the North Carolina Act from being the
most closely analogous, explaining:
[Plaintiff’s
identification
of
the
distinctions
between the Rehabilitation Act and the North Carolina
Act] begs the question of which North Carolina statute
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is most analogous to the Rehabilitation Act. The
differences between the North Carolina Act and the
Rehabilitation Act identified by McCullough do not, by
themselves, magically tip the balance of similarities
so as to make the general wrongful discharge provision
more analogous to the Rehabilitation Act than the
specific provisions of the North Carolina Act.
It
simply means that, in North Carolina, there is no
perfect counterpart to the Rehabilitation Act, and we
must determine which statute is more appropriate.
Id. at 132 (emphasis added).
In the end, we held that, despite
the differences the plaintiff had identified, the North Carolina
Act was a better fit than the general wrongful-discharge statute
because the North Carolina Act and the Rehabilitation Act both
“redress discrimination against the same very specific group of
persons,”
whereas
“the
general
wrongful
discharge
statute
protects against a wide range of discrimination which, although
including persons with disabilities, also encompasses many other
classes of individuals.”
Id.; see also Wolsky v. Medical Coll.
Of Hampton Roads, 1 F.3d 222, 225 (4th Cir. 1993) (“[The Supreme
Court]
acknowledged
that
minor
differences
between
state
and
federal statutes are acceptable and the most analogous statute
need not be identical.”).
Similar
reasons
dictate
that
§ 20-1202
claims
closest analogue to claims brought under Title II. 4
4
are
the
It seems
We have borrowed statutes of limitation from state-law
anti-discrimination statutes in other cases brought under the
ADA and Rehabilitation Act.
See A Society Without a Name v.
Virginia, 655 F.3d 342, 348 (4th Cir. 2011) (holding one-year
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fairly plain to me that a statute creating a private right of
action for illegal discrimination is a closer fit than a catchall statute governing all sorts of civil actions.
And, the
difference Semenova identifies between causes of action under
§ 20-1202 and those under Title II of the ADA – that § 20-1202
applies
in
only
certain
subdivisions
of
the
relevant
jurisdiction – is much less significant from the standpoint of
applying the Maryland legislature’s limitations-period judgment
than
were
the
differences
we
considered
in
McCullough.
Notwithstanding the fact that § 20-1202 applies only to three
counties,
the
discrimination
critical
fact
those
counties
in
remains
have
a
that
victims
state-law
cause
of
of
action under § 20-1202 that closely resembles a Title II claim,
and
the
Maryland
legislature
has
decided
limitations period applies to such actions.
that
a
two-year
I believe that is
the legislative judgment that should control here.
limitations period set forth in Virginia Rights of Persons with
Disabilities Act applies to Title II claims brought in
Virginia); Wolsky v. Medical Coll. Of Hampton Roads, 1 F.3d 222,
224-25 (4th Cir. 1993) (holding same limitations period applies
to Rehabilitation Act claims brought in Virginia).
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For all of the foregoing reasons, I respectfully dissent. 5
5
I would conclude, for the reasons explained in
McCullough, that the two-year statute of limitations is
consistent with the federal policies underlying the ADA.
See
McCullough v. Branch Banking & Trust Co., 35 F.3d 127, 131 (4th
Cir. 1994).
And I agree with the district court’s conclusion
that Semenova’s action is time-barred, assuming that a two-year
limitations period applies.
17
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