Forte v. Board of Education of Harford County et al

Filing 18

MEMORANDUM. Signed by Judge William M Nickerson on 12/4/2014. (jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

JENNIFER FORTE

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v.
BOARD OF EDUCATION
OF HARFORD COUNTY et al.
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Civil Action No. WMN-14-1490

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MEMORANDUM
Pending before the Court is Defendant Board of Education of
Harford County’s Motion to Dismiss.

ECF No. 15.

The Court

determines that no hearing is necessary, Local Rule 105.6, and
for the reasons stated herein, the motion will be granted in
part and denied in part.
I.

FACTUAL AND PROCEDURAL BACKGROUND
Ms. Forte brings this action against the Board of Education

of Harford County (the Board) and Harford County Public Schools
pursuant to the Americans with Disabilities Act of 1990, as
amended, 42 U.S.C. §§ 12101 et seq. (ADA), Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq., and
Maryland contract law for the Board’s1 alleged failure to

1

Although Ms. Forte named Harford County Public Schools as a defendant in her
complaint, it does not exist as a legal entity. See Md. Code Ann, Educ. § 3104; James v. Frederick Cnty. Pub. Schs., 441 F. Supp. 2d 755, 758 (D. Md.
2006). The Board has consented to treat claims against the Harford County
Public Schools as being against the Board of Education of Harford County
without need for amendment. ECF No. 8-1 at 1.

accommodate her disabilities, creation of a hostile work
environment, retaliation, and breach of a prior settlement
agreement between the parties.

Ms. Forte suffers from “mental

retardation and seizure disorder,” ECF No. 13 ¶ 2 (Amended
Complaint), and has a disability “consist[ing] of low cognitive
abilities, a short attention span, poor memory, and behavioral
abnormalities”

Id. ¶ 20.

Ms. Forte was hired by the Board in June 2009 as a mailroom
clerk in accordance with a settlement agreement entered into by
her and the Board in order to dispose of an ADA discrimination
and retaliation suit she filed in this court in November 2008.
The May 2009 Settlement Agreement also memorialized the
following accommodations to be taken by the Board:
(1)

Supervision: the Board would provide a supervisor to
directly oversee and evaluate Ms. Forte’s performance;

(2)

Job Skills Assessor: the Board would partially pay for
an assessment of skills by a job skills expert
selected by Ms. Forte;

(3)

Job Coach: the Board would work with Ms. Forte’s
qualified job coach to help her with assigned job
duties and to familiarize her with the work
environment;

(4)

ADP: the Board would execute an adaptive progressive
development plan (ADP) during the six-month
2

probationary period created collaboratively by Ms.
Forte, the skills assessor, job coach, and supervisor;
(5)

Early Job Evaluations: the Board would provide at
least two formal performance evaluations to provide
feedback to Ms. Forte during the probationary period;
and

(6)

Work Load Requirements: the Board would take steps to
insure that work would not accumulate on Ms. Forte.

Id. ¶ 25.

The Settlement Agreement also contained a dispute

resolution clause that provided that
“[t]he parties agree to submit any dispute that arises
over the interpretation and implementation of this
Agreement to United States Magistrate Paul W. Grimm of
the United States District Court for the District of
Maryland (Northern Division), who shall retain
jurisdiction over this matter for the sole purpose of
resolving disputes.”
Id.

Ms. Forte states that for the first five months of her
employment, the Board reasonably accommodated her disability by
“supporting her job coach and initiating other accommodations
agreed upon in the Settlement Agreement and required under the
ADA and Rehabilitation Act.”

Id. ¶ 3.

She then alleges that

from November 2009 onward that the working relationship between
her and her employers disintegrated.
At first, Ms. Forte and the Board agreed upon an ADP which

3

required job coaching and feedback from Board employees
regarding her performance.

In this, the ADP reinforced the

reasonable accommodations spelled out in the Settlement
Agreement.

By the time of her termination in November, 2011,

however, Ms. Forte’s allegations paint a picture of a work
environment in which she was isolated and stymied by the actions
of her coworkers and supervisors.

She alleges that she was

placed in an isolated working environment, with limited personal
contact, and was not allowed to leave unless on a supervisor’s
schedule.

ECF No. 13 ¶ 37.

When she did interact with co-

workers, they teased her, criticized her work, and altered the
lights in her working environment without her permission.2
This work environment was exacerbated by the Board’s
failure to follow the ADP that was created for her.

First, Ms.

Forte was allowed to have her phone, which was noted in the ADP
as a distraction for her, but then criticized for being
distracted by the phone.

Id. ¶ 38.

She was given lengthy

documents and booklets to shred with a small-capacity machine,
but then criticized for jamming the shredder.

Id. ¶ 39.

She

was required to stand for long amounts of time, even though the
ADP stipulated that she was to stand for only an hour at a time.
Finally, even though her ADP outlined steps for more
2

In her response, Ms. Forte further explains that switching the lights on and
off was for the purpose of “agitating her disability.” ECF No. 16 at 27.

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responsibility at work, Ms. Forte was limited by her supervisors
in what she could do.
Ms. Forte also alleges that she did not receive the
feedback and job coaching required to accommodate her
disability.

She states that she did not receive the required

formal evaluations during the probation period beyond a brief
memorandum in July, 2009, reminding her of her duties as
mailroom clerk.

When Ms. Forte had a question regarding her job

performance, she was criticized and reprimanded by supervisors.
A significant amount of time would pass during which Ms. Forte
did not even know who to consult when she had a question
regarding her job.

Ms. Forte had access to a job coach only

until August 2010, around the same time that she received her
first negative performance review, in the form of a letter sent
to her attorney.
On November 28, 2011, Ms. Forte was called into a meeting
during which she was fired from her position as mailroom clerk.
The termination letter stated that she was being terminated for
an “extended period of unsatisfactory work performance.”
59.

Id. ¶

Ms. Forte alleges that, but for the Board’s failure to

accommodate her disabilities as previously agreed, poor
performance would not have been at issue.

Six months after her

termination, she sent a letter to Judge Paul W. Grimm regarding
the potential breach of the Settlement Agreement.
5

Judge Grimm

ultimately declined to decide the dispute between the parties,
writing “[i]f, as it appears to me, that each is convinced that
they are right, and the other wrong, then it may be that
litigation of the dispute in the appropriate forum is the only
way to achieve a final resolution.”

ECF 15-3 at 2.

In May of 2014, Ms. Forte filed this instant action.

The

Board filed a motion to dismiss, ECF No. 8, to which Ms. Forte
responded by filing an Amended Complaint, ECF No. 13, and a
Response in Opposition to the Board’s Motion, ECF No. 14.

The

Board then renewed its Motion to Dismiss, ECF No. 15, which is
now fully briefed.

In its Motion, the Board argues, first, that

all of Ms. Forte’s claims are barred by the Eleventh Amendment
or, in the alternative, are limited in the types of recovery Ms.
Forte may seek.3
II.

LEGAL STANDARD

Defendant Board’s motion is governed by Fed. R. Civ. P.
12(b)(6).

In evaluating a motion to dismiss filed pursuant to

Rule 12(b)(6), the Court must accept as true all well-pled

3

The Board’s Motion to Dismiss addresses Ms. Forte’s Rehabilitation Act
claims to the extent that they may be subsumed by her claims for breach of
the Settlement Agreement. ECF No. 15-1 at III.A. The Motion is otherwise
silent as to the application of sovereign immunity to the Rehabilitation Act
claims. The Court finds that Congress has expressly abrogated sovereign
immunity as to claims under the Rehabilitation Act and as such, Ms. Forte’s
Section 504 claims are not limited by any conditional waiver. 42 U.S.C. §
2000d-7 (“[A] state shall not be immune under the Eleventh Amendment of the
Constitution of the United States from suit in Federal Court for a violation
of section 504 of the Rehabilitation Act.”); accord Lane v. Pena, 518 U.S.
187, 200 (1996).

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allegations of the complaint and construe the facts and
reasonable inferences derived therefrom in the light most
favorable to the plaintiff.

See Ibarra v. United States, 120

F.3d 472, 474 (4th Cir. 1997).

To survive dismissal, “a

complaint must contain sufficient factual matter . . . to ‘state
a claim to relief that is plausible on its face.’”

Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic v.
Twombly, 550 U.S. 554, 570 (2007)).

“A claim has facial

plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
U.S. at 678 (citing Twombly, 550 U.S. at 556).

Iqbal, 556

A court need not

accept a plaintiff’s legal conclusions as true, as “[t]hreadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”

Id.

Thus,

“[d]etermining whether a complaint states a plausible claim for
relief will . . . be a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.”

Id. at 679.

III. ANALYSIS
The Board argues that it is entitled to sovereign immunity,
pursuant to the Eleventh Amendment of the United States
Constitution, as to all of Ms. Forte’s claims.

The Eleventh

Amendment provides that “[t]he judicial power of the United
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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.”

Under the Eleventh Amendment, “an unconsenting

State is immune from suits brought in federal courts by her own
citizens as well as by citizens of another State.”
Jordan, 415 U.S. 651, 663 (1974).

Edelman v.

This immunity applies to

agencies and instrumentalities of a State.
Cal. v. Doe, 519 U.S. 425, 429 (1997).

Regents of Univ. of

As a matter of Maryland

law, the Board is an agency of state government.

Bd. of Educ.

of Baltimore Cnty. v. Zimmer-Rubert, 973 A.2d 233, 236 (Md.
2009).

Therefore, the Board is entitled to Eleventh Amendment

immunity unless this immunity has been waived by statute “‘by
the most express language or by such overwhelming implications
from the text as will leave no room for any other reasonable
construction.’”

Lee-Thomas v. Prince George’s Cnty. Pub. Schs.,

666 F.3d 244, 250 (4th Cir. 2012) (quoting Atascadero State
Hosp. v. Scanlon, 473 U.S. 234, 240 (1985)).
Through various statutory provisions, Maryland has waived
its sovereign immunity and consented to be sued in certain
courts for certain matters.

At issue here are two separate

statutory provisions: Md. Code Ann., Cts. & Jud. Proc. § 5-518
(hereinafter “C.J.P. 5-518”) and Md. Code Ann., State Gov’t §
12-201 (hereinafter “S.G. 12-201”).
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C.J.P. 5-518 provides a

limited waiver of the sovereign immunity of county education
boards, stating that “a county board of education may not raise
the defense of sovereign immunity to any claim of $100,000 or
less” but allowing “a county board of education . . . may raise
the defense of sovereign immunity to any amount claimed above
the limit of its insurance policy or, if self-insured . . .
above $100,000.”

S.G. 12-201, on the other hand, governs waiver

of sovereign immunity when the claim involves a contract, and
forbids the State, its officers, and its units from raising “the
defense of sovereign immunity in a contract action, in a court
of the State, based on a written contract that an official or
employee executed for the State . . . [while] acting within the
scope of the authority of the official.”

In order for S.G. 12-

201 to apply, the claimant must file suit within one year from
either the date on which the claim arose or completion of the
contract.

Md. Code Ann., State Gov’t § 12-202.

S.G. 12-201 has

been further limited by Maryland case law to only waive immunity
in state, not federal, courts.

State v. Sharafeldin, 854 A.2d

1208, 1219 (Md. 2004) (“There was clearly no intent on the part
of the Legislature to waive the State’s Eleventh Amendment
immunity in actions in Federal court or to waive its inherent
sovereign immunity in actions filed in the courts of some other
state.

Section 12-201 is plainly limited to an action in a

Maryland Court.”).
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The Board concedes that a limited sovereign immunity waiver
is pertinent to the case at hand, but argues that since all of
Ms. Forte’s claims relate back to the Settlement Agreement, they
are contractual in nature and governed by S.G. 12-201.

As a

result, in its view all claims must be dismissed on timing and
venue grounds, since Ms. Forte filed her action in federal, not
state, court more than a year after she was discharged.

From

the plain language of C.J.P. 5-518, it is clear that this
statute has some applicability to the case at hand.

Defendant

is, uncontrovertibly, a county Board of Education that serves as
an arm of the state.

See James v. Frederick Cnty. Pub. Schs.,

441 F. Supp. 2d 755, 760 (D. Md. 2006) (“This court has made
clear, consistently and repeatedly, that the county boards of
education of Maryland are state agencies.”)

As such, any claim

against the Board is limited by a statutory ceiling, unless the
claim is subject to some other waiver of immunity.

The first

question for the Court is precisely how the separate limited
waiver of immunity of S.G. 12-201 interacts with C.J.P. 5-518 to
limit the claims that Ms. Forte can bring in this court.
Ms. Forte argues that C.J.P. 5-518 applies to all claims,
overshadowing the limitations of S.G. 12-201, and the Board’s
reliance on an unpublished Fourth Circuit opinion is
inappropriate.

First, she points to Zimmer-Rubert for the

proposition that “‘the words “any claim” cannot reasonably be
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read to exclude certain categories of claims.’”
(quoting 973 A.2d at 241).

ECF No. 16 at 6

She also directs the Court’s

attention to Lee-Thomas's interpretation of C.J.P. 5-518 as a
“‘broad and unambiguous’ waiver of a general sovereign immunity
defense.”

666 F.3d at 254.

Next, Ms. Forte attacks the Board’s

reliance on an unpublished Fourth Circuit decision, Gilliland v.
Bd. of Educ. of Charles Cnty., which held that a Board’s
immunity was not waived as to a Fair Labor Standards Act claim
because such claim was contractual in nature and C.J.P. 5-518
does not apply to contract claims.
Cir. 2013).

526 Fed. App’x 243, 249 (4th

What she does not address is the Maryland Court of

Appeals decision in BEKA Indus. v. Worcester Cnty. Bd. of Educ.,
18 A.3d 890 (Md. 2011), which the Gilliland court used as the
foundation of its opinion.

In BEKA Industries, the court

explicitly declined to apply C.J.P. 5-518 in favor of S.G. 12201 to govern a contractual dispute between a county board of
education and a construction contractor.

Id. at 899-900.

This

decision leads this Court to conclude that S.G. 12-201 will
apply to contract claims and C.J.P. 5-518 will apply to “tort or
insurable claim, such as those for personal injury, and for
claims arising from alleged employment law violations.”

Id. at

222.
The Board argues the reverse, that S.G. 12-201 eclipses the
parameters of C.J.P. 5-518.

The Board urges the Court to
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conclude that, but for the contractual obligations between the
parties, the allegedly discriminatory actions would not have
occurred.

The Board encourages that S.G. 12-201’s immunity

provisions would apply to all of Ms. Forte’s claims and this
case should be dismissed.

ECF No. 15-1 at 15.

It contends that

the Court should apply the same logic as the Gilliland court did
to the plaintiff’s Fair Labor Standards Act claim, and dismiss
Ms. Forte’s ADA claims.
The Board, however, misreads the holding of Gilliland.

In

Gilliland, the Fourth Circuit declined to extend the immunity
waiver of C.J.P. 5-518 because a Fair Labor Standards Act Claim,
regardless of the underlying facts, was contractual in form,
rather than tort or quasi-tort as covered by C.J.P. 5-518.
Gilliland, 526 Fed. App’x at 249 (“Unlike discrimination claims,
which the Maryland courts have concluded are in the nature of
personal injury claims, FLSA claims ‘are contractual in their
nature.’”) (quoting Roland Elec. Co. v. Black, 163 F.2d 417, 426
(4th Cir. 1947)). Thus, the overarching nature of the suit
rather than the particularities of the case was crucial to the
Court’s decision.

Here, Ms. Forte has pled claims both

contractual and tortious in nature, which she is free to do
under the Court’s rules of alternative pleading.

Fed. R. Civ.

P. 8(d)(2)&(3); RaceRedi Motorsports, LLC v. Dart Mach., LTD,
640 F. Supp. 2d 660, 666 (D. Md. 2012) (“Rule 8(d)(2), however,
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permits a party to plead multiple, and when necessary,
inconsistent claims.”).

It also seems manifestly unjust that

allegedly discriminatory actions are to be thrown out with the
contract claim bath water when the Maryland General Assembly and
state courts have clearly abrogated a County Board of
Education’s immunity when discrimination is involved.
The answer lies in the middle.

Under BEKA Industries and a

prudential reading of the two statutes, the Court finds that
S.G. 12-201 applies to Ms. Forte’s contractual claims and C.J.P.
5-518 applies to her ADA claims.

To broadly apply S.G. 12-201

undermines the remedial protections established in federal
employment discrimination laws and would also require a
departure from practice in this Court.

To similarly use C.J.P.

5-518 with a broad stroke counters the State’s vested and
explicit interest in adjudicating contract claims in its own
courts.

It would also violate the tenet that, when a settlement

agreement is violated, “the gravamen of such employee’s
grievance lies in contract.”

Sharafeldin v. Md. Dep’t of Pub.

Safety and Corr. Servs., 94 F. Supp. 2d 680, 686 (D. Md. 2000).
This conclusion is also consistent with Judge Russell’s
recent decision in Davenport v. Anne Arundel County Board of
Education, Civ. No. GLR-12-1335, 2012 WL 6043641 (D. Md. Dec. 4,
2012).

In Davenport, the plaintiff brought both age

discrimination and breach of contract claims stemming from the
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defendant’s failure to hire plaintiff through contractually
obligated means.

Judge Russell applied S.G. 12-201 to grant

immunity on the breach of contract claims and C.J.P. 5-518(c) to
deny immunity as to the discrimination claims, even though the
discrimination claim, as here, would not have arisen without the
contractual obligations of the defendant.
apply the same reasoning.

Here, the Court will

C.J.P. 5-518 will apply as a limited

waiver of the Board’s immunity under the ADA, and the Court will
deny Defendant’s motion to dismiss as to Counts I-IV.4
Count IX of the Complaint – Enforcement of a Federal
Settlement Agreement – must be dismissed under S.G. 12-201
unless the Board specifically and unambiguously consented to
suit in this court.

Sharafeldin, 94 F. Supp. 2d at 686 (holding

that a breach of a settlement agreement may only be heard in
federal courts if the State has consented by “the most express
language.”) (quoting Edelman, 415 U.S. at 673) (emphasis in
original).

It has not done so.

Although Ms. Forte argues that

the language of the settlement agreement encapsulates the
instant action, her interpretation is not supported by the case
law she cites and Judge Grimm’s prior ruling.

4

As Ms. Forte concedes that “ADA claims are justiciable against state
agencies for damages up to $100,000,” ECF No. 16 at 9, the Court will cap her
recovery under the ADA to $100,000. The Court notes, however, that since Ms.
Forte’s Rehabilitation Act claims are not subject to the cap, applying the
limit of C.J.P. 5-518 may be an exercise of potentially limited use.

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The Settlement Agreement between Ms. Forte and the Board
provides that Judge Grimm would retain jurisdiction for the
“sole purpose” of resolving “any dispute that arises over the
interpretation and implementation” of the Agreement.
¶ 25.

ECF No. 13

Ms. Forte would have the Court analogize this language to

a contract interpreted by the Fifth Circuit in Watson v. Texas,
261 F.3d 436 (5th Cir. 2001).

The Watson court held that the

state had waived its sovereign immunity defense when it
consented to a dispute clause that stated the parties “agree to
present any disputes under this Settlement Agreement, including
without limitation any claims for breach or enforcement.”
F.3d at 441.

261

The language in the two clauses, is clearly

distinct, as Watson interpreted “any dispute” for “claims for
breach or enforcement” while here the Court is asked to
determine whether “sole purpose” and “interpretation and
implementation” extend to the situation at hand.

The language

of the Settlement Agreement indicates that Judge Grimm’s “sole
purpose” is to resolve issues in two areas: interpretation and
implementation.

The Board’s failure to continue to abide by the

Settlement Agreement once it is interpreted and implemented does
not fall within the federal court’s jurisdiction.

Judge Grimm

confirmed as much when he declined to adjudicate the parties’
claim for “breach” of the Settlement Agreement rather than a
question regarding execution of the contract.
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ECF No. 16-8 at

2.

Accordingly, the Board has not waived or broadened its

limited S.G. 12-201 waiver in this case, and Count IX shall be
dismissed.

See Kokkonen v. Guardian Life Ins. Co. of America,

511 U.S. 375, 381-82 (1994) (“The facts to be determined with
regard to such alleged breaches of contract are quite separate
from the facts to be determined in the principal suit, and
automatic jurisdiction over such contracts is in no way
essential to the conduct of federal court business. . . .
Absent [an independent basis for federal jurisdiction],
enforcement of the settlement is for state courts.”).
The Board makes two final arguments to limit the nature of
Ms. Forte’s relief.

They argue that Ms. Forte’s claims are

related to the Board’s retaliation against her and any relief
may only be injunctive and not monetary in nature, or, in the
alternative, if monetary relief is available, Forte’s relief is
limited to compensatory damages, as punitive relief is not an
available remedy under 504 of the Rehabilitation Act and the
Board, as a government body, is exempt from punitive damages
under the ADA.

The Court declines to address the Board’s

argument that retaliation claims are limited to injunctive
relief, as Ms. Forte has alleged sufficient conduct on behalf of
Board employees to constitute claims of conduct both directly
prohibited and retaliatory in nature.

See Evans v. Larchmont

Baptist Church Infant Care Center, Inc., 956 F. Supp. 2d 695,
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709 (E.D. Va. 2013) (citing EEOC v. Rite Aid Corp., 750 F. Supp.
2d 564, 571 n.5 (D. Md. 2010)).

The Court will, however, grant

the Board’s request to strike punitive damages from Ms. Forte’s
prayer for relief. See Teasdell v. Baltimore Cnty. Bd. of Educ.,
2013 WL 4804736 (D. Md. Sept. 6, 2013) (“Although punitive
damages are generally available in suits brought under the ADA,
the statute specifically exempts . . . government agenc[ies].”);
Barnes v. Gorman, 536 U.S. 181, 189 (2002) (“[P]unitive damages
may not be awarded . . . in suits brought under . . . § 504 of
the Rehabilitation Act.”).

IV.

CONCLUSION

For the foregoing reasons, Defendant’s Motion to Dismiss
will be granted in part and denied in part.

A separate Order

will issue.

______________/s/__________________
William M. Nickerson
Senior United States District Judge

DATED:

December 4, 2014

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