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
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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