Battle v. Maryland

Filing 16

MEMORANDUM. Signed by Judge James K. Bredar on 5/7/14. (mps, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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SABRINA L. BATTLE,

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Plaintiff

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v.

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STATE OF MARYLAND DEP’T OF
LABOR, LICENS’G & REGUL’N,

CIVIL NO. JKB-13-1436

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Defendant
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MEMORANDUM
Sabrina L. Battle filed this suit on May 15, 2013, claiming violations of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101 et seq.; and the Family and Medical Leave Act of 1993 (“FMLA”),
29 U.S.C. § 2601 et seq. (Compl., ECF No. 1.) The Defendant is the State of Maryland’s
Department of Labor, Licensing, and Regulation (“DLLR”).

Defendant was served on

January 27, 2014 (ECF No. 8), and after an extension of time to answer, filed the pending motion
to dismiss (ECF No. 13). Plaintiff’s counsel requested and received an extension of time to file a
response to the motion by April 14, 2014 (ECF Nos. 14, 15), but to date nothing has been filed in
opposition to Defendant’s motion. No hearing is necessary. Local Rule 105.6 (D. Md. 2011).
The motion will be granted.
I. Service of Process
With an original filing date of May 15, 2013, the complaint was due to be served on
Defendant by September 12, 2013, which is the end of the 120-day period allowed for service
under Federal Rule of Civil Procedure 4(m). Rule 4(m) states in relevant part:

If a defendant is not served within 120 days after the complaint is filed, the
court—on motion or on its own after notice to the plaintiff—must dismiss the
action without prejudice against that defendant or order that service be made
within a specified time. But if the plaintiff shows good cause for the failure, the
court must extend the time for service for an appropriate period.
On September 17, 2013, the Court ordered Battle to show cause within 14 days why the
case should not be dismissed for failure to prosecute based on failure to effectuate service on
Defendant by September 16, 2013.1

(ECF No. 3.) In response, Battle’s counsel filed an

explanation of the circumstances surrounding the issue of service of process and requested that
the Court extend the period for Plaintiff to effectuate service. (ECF No. 5.) On October 2, 2013,
the Court exercised its discretion to grant Plaintiff an additional 120 days to complete service of
process. (ECF No. 6.)
Defendant now contends that the extension granted Plaintiff resulted in a total period of
240 days for completion of service. (Def.’s Mot. Supp. Mem. 4-5.) Thus, when Defendant was
served on January 27, 2014, that marked day 257 from the filing of the complaint, and, therefore,
service was untimely. (Id.) Although Defendant’s analysis is not unreasonable, the Court’s
order may have created some confusion based on what apparently was Plaintiff’s interpretation,
namely, that the new 120-day period effectively began on the day of the Court’s order,
October 2, 2013, rather than retroactively on September 13, 2013. Under that interpretation,
service on January 27, 2014, was timely. The Court considers it the better part of discretion to
rule in Plaintiff’s favor, although by no means is the Court suggesting this is the only correct
call.

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September 16 was actually four days past the 120-day mark.

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II. Ninety-Day Filing Period after Receipt of Right-to-Sue Letter
Defendant implicitly raises the question of whether the complaint was filed within
90 days after Plaintiff’s receipt of the right-to-sue letter from the Equal Employment Opportunity
Commission (“EEOC”). (Def.’s Mot. Supp. Mem. 4.) Defendant notes the EEOC’s letter is
dated February 13, 2013, Plaintiff claims to have received it “on or about February 16, 2013,”
and her suit was filed 91 days after the date of the letter, but 88 days from the date Plaintiff
alleges she received it. (Id.) Although the Fourth Circuit does not embrace an “actual receipt”
rule, see Harvey v. City of New Bern Police Dep’t, 813 F.2d 652, 653-54 (4th Cir. 1987)
(rejecting “actual receipt” rule and embracing flexible rule: “district courts should conduct a
thorough examination of the facts to determine if reasonable grounds exist for an equitable
tolling of the filing period”), the Court finds it implausible that Plaintiff should be held to have
received the letter on the same date it was issued, particularly since Defendant’s date stamp on
the letter indicates Defendant did not receive it until February 15, 2013 (Def.’s Mot., Ex. 2). See
also Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 148 n.1 (1984) (allowing three days
for mail service under then-Rule 6(e) for presumed receipt of right-to-sue letter from EEOC).
The Court accepts as true Plaintiff’s allegation that she received the letter on or about
February 16, 2013 (Compl. ¶ 85). Accordingly, the complaint was timely filed.
III. Eleventh Amendment Immunity
It seems undisputed that the Maryland DLLR is a Maryland state agency and, therefore,
entitled to whatever Eleventh Amendment immunity to which the State of Maryland is entitled.
This claim of immunity has been raised against Battle’s claims under the ADA and the FMLA.
Defendant has rightly noted the Supreme Court’s decision in Board of Trs. of Univ. of Ala. v.
Garrett, 531 U.S. 356 (2001), which held that Congress did not, pursuant to the Enforcement
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Clause of the Fourteenth Amendment, validly abrogate the States’ Eleventh Amendment
immunity to suits by private individuals for money damages under the ADA’s Title I. Id. at
368-74 & n.9. In addition, the case of Coleman v. Court of Appeals of Maryland, 132 S. Ct.
1327 (2012), held the same as to suits for money damages under the FMLA’s self-care provision.
Id. at 1338. Maryland has not waived its immunity for suits in federal court. Md. Code Ann.,
State Gov’t § 12-103 (LexisNexis 2009). Thus, Battle’s claims under the ADA and FMLA, her
second and third causes of action, will be dismissed for lack of subject-matter jurisdiction
pursuant to Federal Rule of Civil Procedure 12(b)(1).
IV. Failure to State a Claim for Racial Discrimination
Battle’s remaining claim is that she was discriminated against on the basis of her race.
Defendant asserts this part of her complaint fails to state a claim for relief and should be
dismissed under Rule 12(b)(6).
A. Standard of Dismissal for Failure to State a Claim
A complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility exists “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. An inference of a mere
possibility of misconduct is not sufficient to support a plausible claim. Id. at 679. As the
Twombly opinion stated, “Factual allegations must be enough to raise a right to relief above the
speculative level.” 550 U.S. at 555. “A pleading that offers ‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will not do.’ . . . Nor does a complaint
suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556
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U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557). Although when considering a motion to
dismiss a court must accept as true all factual allegations in the complaint, this principle does not
apply to legal conclusions couched as factual allegations. Twombly, 550 U.S. at 555.
B. Allegations of the Complaint
Battle states she is a black citizen who was hired by the Maryland State Department of
Education (“MSDE”) in May 2007 as an adult basic education teacher in MSDE’s Correctional
Education Division. (Compl. ¶ 6.) She was assigned to teach at the Baltimore City Detention
Center (“BCDC”). (Id. ¶ 10.) A few months later, Battle became ill with mononucleosis and
was subsequently diagnosed with fibromyalgia, believed by her doctors to have been triggered
by the mononucleosis. (Id. ¶¶ 11, 13, 14.) As a result of her fibromyalgia, Battle suffers from
arthritis and destructive sleep apnea. (Id. ¶ 16.) Battle alleges her performance appraisals were
always above standard and that she performed her duties without incident or problems until
2009. (Id. ¶¶ 9, 17.)
In 2009, Battle’s physicians confirmed she had acute fibromyalgia, bursitis, and
destructive sleep apnea, and they determined that her medical condition was aggravated by her
working conditions at BCDC. (Id. ¶¶ 18, 19.) Battle alleges that she had to climb 60 stairs every
day at the BCDC in order to perform her job duties; she also alleges the BCDC “was . . .
considered to be very dusty, and the facility was sprayed with pesticides at least once or twice a
month.” (Id. ¶¶ 20, 21.) She says that before July 2009, she “had no difficulty obtaining
approval from her supervisors in order . . . to deal with her medical conditions” (id. ¶ 22),
although she does not specify what form that approval took or how she “deal[t] with her medical
conditions.”

In July 2009, MSDE’s Correctional Education Division was transferred from

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MSDE to the Maryland DLLR; however, Battle’s duty station remained at BCDC. (Id. ¶¶ 23,
24.)
In August 2009, Battle applied for family and medical leave; her application was
supported by her primary care physician’s statement certifying Battle’s diagnoses of
fibromyalgia, accompanied by chronic back, hip, and muscle pain, of destructive sleep apnea,
and of trochanteric bursitis, which was also a cause of her hip pain. (Id. ¶¶ 25-29.) The
physician certified Battle would need physical therapy sessions two or three times each week,
that she would be unable to work during periods of incapacity of several days in length, and that
her fibromyalgia caused her to have difficulty breathing, which made stair climbing difficult for
her. (Id. ¶¶ 30, 31, 34.) In November 2009, Battle formally requested up to a year’s leave of
absence under the FMLA, but she was approved for only a one-month leave of absence. (Id.
¶¶ 35, 37.) Although she appealed the decision, Battle was unsuccessful in getting more than
one month’s leave, and she rescinded her request for leave. (Id. ¶¶ 40, 41.)
On December 16, 2009, Battle requested accommodations at work, including that she not
be required to climb stairs but be allowed to use the elevator and “that she have more control
over her workplace environment, so that she would not be exposed to extreme temperatures or
chemicals in the air.” (Id. ¶¶ 42-44.) Although two people from DLLR came to BCDC in
January 2010 to assess the conditions there, Battle heard nothing more from them. (Id. ¶¶ 4547.) After Battle was injured in an automobile accident on April 13, 2010, she was off from
work until May 23, 2010. (Id. ¶ 48.) Her physicians approved her return to work for only a half
day at a time and on the condition that she not be required to climb stairs. (Id. ¶ 49.) Battle was
given a temporary assignment to the Maryland Training Center, located close to the BCDC, and
she would not have to climb stairs there. (Id. ¶¶ 52-54.) Battle continued to press for resolution

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of her December 2009 request for accommodations and, upon request by DLLR, she submitted
additional documentation from her physicians in June 2010. (Id. ¶¶ 51, 55-58.) The physicians
indicated that Battle needed accommodations of no stair climbing, no opening heavy doors, a
more flexible work schedule to permit flexible use of leave, modification of her work space
including air purification devices, and avoidance of exposure to chemicals such as cleaning
products and pesticides. (Id. ¶ 59.)
In July 2010, Battle was offered three options as accommodations: assignment to vacant
positions in Cumberland, Hagerstown, and Jessup. (Id. ¶ 63.) Battle did not view the commutes
to Cumberland and Hagerstown as reasonable, but visited the Jessup facility on July 16, 2010.
(Id. ¶¶ 64, 65, 67.) The next day she wrote a DLLR employee and said that although Jessup was
the only reasonable site suggested, that facility’s lack of air conditioning and the distance of the
commute (45 minutes to one hour each way) made Jessup unattractive as a potential
accommodation. (Id. ¶¶ 64, 67.) On August 2, 2010, Battle received a letter ordering her to
report to the Jessup facility. (Id. ¶ 68.) Although she attempted to appeal her transfer, Battle
received another letter on August 18, 2010, affirming the assignment to Jessup. (Id. ¶¶ 69, 70.)
Battle alleges that DLLR made room for her transfer to Jessup by transferring another
teacher, Michael English, from Jessup to BCDC, that English also had a disability that restricted
him from climbing stairs, and that he had requested to stay at Jessup as accommodation for his
disability; English is also black. (Id. ¶¶ 71-74.) Battle further alleges she discovered that a
nonblack female, Veronica Garcia, had received a reasonable accommodation and was permitted
to work from home several days each week and to use the elevator at BCDC. (Id. ¶¶ 75-77.)
Battle does not allege that Garcia had a disability and does not allege that Garcia was a teacher at

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BCDC.2

Battle alleges she complied with her transfer order and reported to Jessup but

immediately discovered that the commute to Jessup aggravated her medical conditions;
consequently, she filed for disability retirement. (Id. ¶¶ 81, 82.) Her disability application was
approved on November 16, 2010, and her last day of work was December 31, 2010. (Id. ¶ 83.)
C. Analysis
Battle alleges she was subjected to disparate treatment when she was denied employment
benefits that white and nonblack employees received. (Id. ¶ 89.) This allegation, being in the
nature of a legal conclusion, need not be accepted by the Court in evaluating Defendant’s motion
to dismiss under Rule 12(b)(6). Twombly, 550 U.S. at 555. Consequently, it is up to the Court to
determine whether a reasonable inference of disparate treatment may be drawn from the
allegations in her complaint.
The Supreme Court has held that a plaintiff in an employment discrimination case need
not allege specific facts to establish a prima facie case under the burden-shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Swierkiewicz v. Sorema N.A., 534
U.S. 506, 508 (2002). See also Twombly, 550 U.S. at 569 (clarifying that newly announced
standard of “enough facts to state a claim to relief that is plausible on its face” did not run
contrary to Swierkiewicz’s holding). However, it is clear that Battle’s complaint rests upon her
attempt to set forth the elements of a prima facie case by alleging that Garcia, who is not black,
received an accommodation to use the elevator when Battle, who is black, was not given the
same accommodation. Thus, although Battle need not plead the elements of a prima facie case,
that, in fact, is the route she has elected to take in her complaint.

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In her EEOC charge, Battle stated Garcia is a psychologist who requested accommodation based on her
pregnancy. (Def.’s Mot. Dismiss, Ex. 1.) Because Battle has relied upon her EEOC charge in her complaint and
because she has not contested its authenticity, the Court will consider it in evaluating Defendant’s motion. Am.
Chiropractic Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004).

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The essence of the theory of disparate treatment is that it “constitutes discrimination only
if the objects of the disparate treatment are, for the relevant purposes, similarly situated.” Camps
Newfoundland/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 601 (1997) (Scalia, J.,
dissenting). See also General Motors Corp. v. Tracy, 519 U.S. 278, 298 (1997) (“Conceptually,
of course, any notion of discrimination assumes a comparison of substantially similar entities.”);
Whirlpool Corp. v. Marshall, 445 U.S. 1, 19 (1980) (“An employer ‘discriminates’ against an
employee only when he treats that employee less favorably than he treats others similarly
situated.”). As for Title VII’s proscription on certain employment practices, the Supreme Court
has stated, “The emphasis of both the language and the legislative history of the statute is on
eliminating discrimination in employment; similarly situated employees are not to be treated
differently solely because they differ with respect to race, color, religion, sex, or national origin.”
Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 71 (1977).
It is not reasonable to infer from Battle’s complaint that she and Garcia are similarly
situated individuals. Although Battle alleges that English, who is black, is also a teacher with a
disability that calls into question his ability to climb stairs, nowhere in Battle’s complaint is there
any allegation that Garcia, who is not black, has similar job duties and a similar disability. If
Garcia does not have similar job duties to Battle at BCDC (irrespective of their job titles), and if
Garcia does not also have a similar disability, then it is not reasonable to infer that she and Battle
are similarly situated individuals. The Court notes that Battle alleges Garcia was permitted to
work from home several days each week. The obvious inference from this allegation is that she
is not a teacher whom one would expect to be on the work site engaged in teaching students on a
daily basis. (Cf. Compl. ¶ 20 (“In order to perform her duties at the Baltimore City Detention
Center, Ms. Battle had to climb 60 stairs every day.” (Emphasis added).) Thus, if Battle was

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required to be on site every work day and Garcia was not, it is reasonable to infer that Garcia’s
and Battle’s job duties are dissimilar. Furthermore, Battle’s EEOC complaint also indicates
Garcia’s accommodation was due to her pregnancy, which is universally recognized to be a
temporary condition, not permanent.

Battle’s complaint is clear that she was seeking a

permanent accommodation rather than a temporary one. These differences undermine Battle’s
implicit allegation that she and Garcia were similarly situated. As a result, Battle’s complaint
fails to state a claim of disparate treatment under Title VII.
V. Conclusion
The Court lacks subject-matter jurisdiction over Battle’s claims in the second and third
counts under the ADA and the FMLA, and those claims will be dismissed pursuant to
Rule 12(b)(1). Battle has failed to state a claim for relief in the first count under Title VII, and
that claim will be dismissed under Rule 12(b)(6). A separate order will issue.
DATED this 7th day of May, 2014.

BY THE COURT:

/s/
James K. Bredar
United States District Judge

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