Tall v. Maryland Developmental Disabilities Administration et al

Filing 29

MEMORANDUM. Signed by Judge Ellen L. Hollander on 12/29/2016. (c/m 12/30/16 bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

HESMAN TALL,
Plaintiff,
v.

Civil Action No. ELH-15-3811

MARYLAND DEP’T OF HEALTH AND
MENTAL HYGIENE, et al.
Defendants.

MEMORANDUM
Hesman Tall, the self-represented plaintiff, filed suit against the Maryland
Developmental Disabilities Administration (“DDA”) and the Maryland Department of Health
and Mental Hygiene (“DHMH” or “Department”). ECF 1. In his Amended Complaint (ECF
22), Tall alleges violations of the Fair Labor Standards Act, as amended, 29 U.S.C. § 201, et seq.
(“FLSA”), and the “Wage and Hour Act.” ECF 22 at 1.1 Plaintiff has appended twenty exhibits
to his Amended Complaint, filed in paper format. See ECF 22-1.
Tall claims that he was employed by defendants from October 8, 2014 until July 4, 2015,
and that defendants failed to pay him both regular wages and overtime from November 9, 2014
through July 4, 2015. ECF 22 at 2. Tall also maintains that defendants did not pay his mileage
or out-of-pocket expenses during the same period. Id. at 2-3.
As to plaintiff’s assertion that he was an employee of defendants, he states that he
“rendered Caregiver, Job Coach and Community Support Living Arrangement (CSLA) care
services” to an individual who is “the disabled client of the defendants; from October 8, 2014 to

1

I assume Tall has referred to Maryland’s Wage and Hour Law, Md. Code (2016 Repl.
Vol.) § 3-431, et seq. of the Labor and Employment Article (“L.E.”).

July 4, 2015.” ECF 22 at 3 ¶ 9. He also claims that the developmentally disabled individual for
whom he provides care receives “Medicare funds under defendant's [sic] New Directions
Program,” which he claims is “federally-funded by the Center for Medicaid Services (CMS)
Medicare [sic] Waiver Program.” Id. ¶ 10.2 Tall seeks damages of “$112,000 including punitive
damages . . . .” Id. at 1.3
Defendants have moved to dismiss the Amended Complaint. ECF 23. It is supported by
a memorandum of law (ECF 23-1) (collectively, “Motion” or “Motion to Dismiss”) and exhibits.
ECF 23-2 through ECF 23-4.

Defendants contend that this Court lacks subject matter

jurisdiction. See ECF 23. They explain that if plaintiff was an “actual employee” of the
defendants, then plaintiff’s suit is subject to dismissal under Fed. R. Civ. P. 12(b)(1) because,
under the Eleventh Amendment to the Constitution, defendants are immune from suit.
Alternatively, defendants claim that plaintiff lacks standing to sue because he is not an employee
of defendants. See ECF 23-1 at 6-9. And, they assert that he has failed to state a claim for relief
because his Amended Complaint contains only a “blanket assertion” that he is an employee (id.
at 10), without any “facts that would plausibly show that he was an employee . . . .” Id. at 8.
Plaintiff opposes the Motion (ECF 25, “Opposition”). He argues, as to sovereign immunity, that
Maryland has waived its immunity. Id. at 3. Defendants here replied. ECF 26.

2

The correct name is Centers for Medicare and Medicaid Services. See Centers for
Medicare and Medicaid Services, http://www.cms.gov (last accessed 12/29/2016).
3

Defendants previously filed a motion to dismiss (ECF 7), claiming that the Complaint
failed to show plaintiff had standing to sue, because he asserted that he is “ a sub-contracted
employee” of defendants, and thus was not an employee of the Department. See ECF 1 ¶ 10. In
a Memorandum and Order of June 24, 2016 (ECF 20; ECF 21), I granted the motion to dismiss,
without prejudice, and with leave to amend. ECF 21. Plaintiff filed the Amended Complaint on
July 7, 2016. ECF 22.

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Also pending is plaintiff’s “Motion for Leave to File a Surreply in Support of Plaintiff’s
Opposition to Defendant’s Motion to Dismiss.” ECF 28 (“Motion for Surreply”). Defendants
did not respond to the Motion for Surreply and the time for doing so has expired. See Local Rule
105.2.
No hearing is necessary to resolve the motions. See Local Rule 105.6.4 For the reasons
that follow, I shall grant the Motion to Dismiss and deny the Motion for Surreply.
I.

Motion for Surreply

Local Rule 105.2(a) provides that a party is not permitted to file a surreply without
permission of the court. “Allowing a party to file a sur-reply is within the Court's discretion, see
Local Rule 105.2(a), but they are generally disfavored.” EEOC v. Freeman, 961 F. Supp. 2d
783, 801 (D. Md. 2013), aff'd in part, 778 F.3d 463 (4th Cir. 2015); see also, e.g., Chubb & Son
v. C & C Complete Servs., LLC, 919 F. Supp. 2d 666, 679 (D. Md. 2013). A surreply may be
permitted when the party opposing the underlying motion “would be unable to contest matters
presented to the court for the first time in the [movant’s] reply.” Clear Channel Outdoor, Inc. v.
Mayor & City Council of Baltimore, 22 F. Supp. 3d 519, 529 (D. Md. 2014) (quotations and
citations omitted). Conversely, a surreply is not appropriate when the reply merely responds to
an issue raised in the opposition to the underlying motion. See Khoury v. Meserve, 268 F. Supp.
2d 600, 605–06 (D. Md. 2003). In that posture, the party had the opportunity to support its
arguments in the opposition. Id. at 606.
In his Motion for Surreply, plaintiff does not indicate why a surreply is either necessary
or appropriate in this case.

ECF 28.

Plaintiff’s proposed Surreply contests the facts in

4

The Court is mindful of its obligation to construe liberally the pleadings of a pro se
litigant, which are “held to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also White v. White, 886 F.2d 721, 722-23 (4th
Cir. 1989).
-3-

defendants’ reply.

See ECF 28-1.

In particular, plaintiff argues that defendants have

misconstrued and misapplied the word “employer,” as it is defined in the FLSA. Id.; see 29
U.S.C. § 203(d). But, this argument does not explain plaintiff’s request to file a surreply.
As noted, a surreply is generally only available when a party would otherwise be unable
to respond to arguments raised during the litigation of the underlying motion. See Khoury, 268
F. Supp. 2d at 606. In this case, the issues of whether plaintiff is an employee and whether
defendants are employers is central to the case. And, defendants cited to the definition of the
term “employer” in their Motion. See ECF 23-1 at 7. Therefore, plaintiff had ample opportunity
in his Opposition to present the arguments he advances in the proposed Surreply. Accordingly, I
shall deny the Motion for Surreply.
II.

Motion to Dismiss – Standard of Review

Pursuant to Fed. R. Civ. P. 12(b)(1), defendants move to dismiss. ECF 23. As noted,
they contend, inter alia, that defendants are immune to suit under the Eleventh Amendment to
the Constitution. Id. Therefore, they argue that this Court lacks subject matter jurisdiction. Id.
In addition, defendants claim plaintiff lacks standing to sue because he was not an employee of
either defendant.
Under Rule 12(b)(1), the plaintiff bears the burden of proving, by a preponderance of
evidence, the existence of subject matter jurisdiction. See Demetres v. East West Const., Inc.,
776 F.3d 271, 272 (4th Cir. 2015); see also Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th
Cir. 1999). A challenge to subject matter jurisdiction under Rule 12(b)(1) may proceed “in one
of two ways”: either a facial challenge, asserting that the allegations pleaded in the complaint are
insufficient to establish subject matter jurisdiction, or a factual challenge, asserting “‘that the
jurisdictional allegations of the complaint [are] not true.’” Kerns v. United States, 585 F.3d 187,

-4-

192 (4th Cir. 2009) (citation omitted) (alteration in original); see also Buchanan v. Consol.
Stores Corp., 125 F. Supp. 2d 730, 736 (D. Md. 2001).
In a facial challenge, “the facts alleged in the complaint are taken as true, and the motion
must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction.”
Kerns, 585 F.3d at 192; accord Clear Channel Outdoor, Inc., 22 F. Supp. 3d at 524. In a factual
challenge to subject matter jurisdiction, “the plaintiff bears the burden of proving” that subject
matter jurisdiction is satisfied, “by a preponderance of the evidence.” United States ex rel.
Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir.), cert. denied, 558 U.S. 875 (2009). In that
circumstance, the court “may regard the pleadings as mere evidence on the issue and may
consider evidence outside the pleadings without converting the proceeding to one for summary
judgment.” Velasco v. Gov't of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004); see also
Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.
1991). Moreover, “the district court is entitled to decide disputed issues of fact with respect to
subject matter jurisdiction,” Kerns, 585 F.3d at 192, “[u]nless ‘the jurisdictional facts are
intertwined with the facts central to the merits of the dispute.’” Vuyyuru, 555 F.3d at
348 (citation omitted). In particular, “the district court may . . . resolve the jurisdictional facts in
dispute by considering evidence . . . such as affidavits.” Id. When appropriate, the court may
also “hold an evidentiary hearing to determine whether the facts support the jurisdictional
allegations.”

United

States

v.

North

Carolina, 180

F.3d

574,

580

(4th

Cir.

1999); accord Kerns, 585 F.3d at 192.
With respect to the contention that plaintiff’s claim is barred by Eleventh Amendment
immunity, defendants seem to raise a facial challenge. Therefore, I shall assume the truth of
plaintiff’s allegations, including his claim that he was an employee of defendants.

-5-

It is not clear whether a motion to dismiss based on the Eleventh Amendment is properly
considered pursuant to Rule 12(b)(1) or Rule 12(b)(6). See Strong v. Swaim-Stanley, WMN-12cv-1924, 2012 WL 4058054 (D. Md. Sept. 13, 2012). Judge Titus addressed this uncertainty in
Beckham v. National R.R. Passenger Corp., 569 F. Supp. 2d 542 (D. Md. 2008). He said, id. at
548 (internal citations omitted):
[T]he Eleventh Amendment limits the ability of a federal district court to exercise
its subject-matter jurisdiction over an action brought against a state or one of its
entities. As such, although Eleventh Amendment immunity is not a “true limit”
on this Court’s subject matter jurisdiction, id., the Court concludes that it is more
appropriate to consider this argument under Fed.R.Civ.P. 12(b)(1) because it
ultimately challenges this Court’s ability to exercise its Article III power.
Judge Titus’s reasoning is persuasive.

Therefore, I shall consider the Eleventh

Amendment challenge under Rule 12(b)(1). See also Abril v. Com. Of Virginia, 145 F.3d 182,
184 (4th Cir. 1998) (affirming the district court’s dismissal of a claim barred by state sovereign
immunity under Rule 12(b)(1))
III.

Discussion

Congress enacted the FLSA in 1938 “to protect all covered workers from substandard
wages and oppressive working hours, ‘labor conditions [that are] detrimental to the maintenance
of the minimum standard of living necessary for health, efficiency and general well-being of
workers.’” Barrentine v. Arkansas–Best Freight Sys., Inc., 450 U.S. 728, 739 (1981) (quoting 29
U.S.C. § 202(a)) (alterations in Barrentine). In particular, the statute “establishe[s] a minimum
wage and overtime compensation for each hour worked in excess of 40 hours in each
workweek . . . .” Perez v. Mortgage Bankers Ass'n, ___ U.S. ___, 135 S.Ct. 1199, 1204 (2015)
(quotations omitted) (alterations in Perez); see Integrity Staffing Solutions, Inc. v. Busk, 574 U.S.
___, 135 S.Ct. 513, 516 (2014).

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The FLSA also established the “general rule that employers must compensate each
employee ‘at a rate not less than one and one-half times the regular rate’ for all overtime hours
that an employee works.” Darveau v. Detecon, Inc., 515 F.3d 334, 337 (4th Cir. 2008) (quoting
29 U.S.C. § 207(a)(1)).

Thus, the FLSA is now “best understood as the ‘minimum

wage/maximum hour law.’” Trejo v. Ryman Hospitality Properties, Inc., 795 F.3d 442, 446 (4th
Cir. 2015) (citation omitted); see also Monahan v. County of Chesterfield, Va., 95 F.3d 1263,
1266–67 (4th Cir. 1996) (“The two central themes of the FLSA are its minimum wage and
overtime requirements . . . . The FLSA is clearly structured to provide workers with specific
minimum protections against excessive work hours and substandard wages.”) (internal
quotations omitted).
The Eleventh Amendment provides: “The Judicial power of the United 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.” The
Eleventh Amendment did not create sovereign immunity, however. Rather, it preserved the
sovereign immunity that the states enjoyed prior to the formation of the Union. See Alden v.
Maine, 527 U.S. 706, 724 (1999); see also Sossamon v. Texas, 563 U.S. 277, 284 (2011). The
preeminent purpose of state sovereign immunity is “to accord states the dignity that is consistent
with their status as sovereign entities . . . .” Fed. Mar. Comm'n v. S.C. State Ports Auth., 535
U.S. 743, 760 (2002).
Thus, states enjoy immunity from suits brought in federal court by their own citizens,
even though the text of the Eleventh Amendment does not explicitly address such a scenario.
See Hans v. Louisiana, 134 U.S. 1, 3 (1890); see also Board of Trustees of University of
Alabama v. Garrett, 531 U.S. 356, 363 (2001) (“The ultimate guarantee of the Eleventh

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Amendment is that nonconsenting states may not be sued by private individuals in federal
court.”). In other words, under the Eleventh Amendment, a private individual is barred from
bringing a suit against a state in federal court to recover damages, unless an exception to
sovereign immunity applies. See Coleman v. Court of Appeals of Md., ___ U.S. ___, 132 S. Ct.
1327, 1333 (2012) (“A foundational premise of the federal system is that States, as sovereigns,
are immune from suits for damages, save as they elect to waive that defense.”); Va. Office for
Prot. & Advocacy v. Stewart, 563 U.S. 247 (2011); see also Seminole Tribe of Fla. v. Florida,
517 U.S. 44, 54–55 (1996) (“For over a century we have reaffirmed that federal jurisdiction over
suits against unconsenting States was not contemplated by the Constitution when establishing the
judicial power of the United States.”) (internal quotation marks and citation omitted).
Of import here, sovereign immunity also bars suit against an instrumentality of a state,
sometimes referred to as an “arm of the state,” absent waiver or a valid congressional abrogation
of sovereign immunity. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101–02
(1984) (“It is clear, of course, that in the absence of consent a suit in which the State or one of its
agencies or departments is named as the defendant is proscribed by the Eleventh Amendment.”);
see also Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997); McCray v. Md. Dep't of
Transp., Md. Transit Admin., 741 F.3d 480, 483 (4th Cir. 2014); Bland v. Roberts, 730 F.3d 368,
389 (4th Cir. 2013); Constantine v. Rectors and Visitors of George Mason Univ., 411 F.3d 474,
479 (4th Cir. 2005).
Here, the DDA and DHMH are entities of the State of Maryland. According to Md. Code
(2015 Repl. Vol), §7-201 of the Health-General Article (“H.G.”), the DDA is an agency of
DHMH. And, according to H.G. § 2-101, DHMH is a “principal department of the State
government.” Therefore, suit against these entities is tantamount to suit against the State.

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The Court of Appeals for the Fourth Circuit has noted three exceptions to the Eleventh
Amendment’s prohibition of suits against a state or an arm of the state. In Lee-Thomas v. Prince
George’s Cnty. Pub. Sch., 666 F.3d 244 (4th Cir. 2012), the Court said, id. at 249 (internal
quotations omitted):
First, Congress may abrogate the States' Eleventh Amendment immunity when it
both unequivocally intends to do so and acts pursuant to a valid grant of
constitutional authority. Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356,
363 (2001) . . . . Second, the Eleventh Amendment permits suits for prospective
injunctive relief against state officials acting in violation of federal law. Frew ex
rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004) . . . . Third, a State remains free
to waive its Eleventh Amendment immunity from suit in a federal court. Lapides
v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 618 (2002).
A.

Abrogation

Congress has the power to abrogate a state’s sovereign immunity, but must do so
pursuant to a valid grant of constitutional authority. Garrett, 531 U.S. at 363; Lee-Thomas, 666
F.3d at 249. The Supreme Court said in Seminole Tribe, 517 U.S. at 55: “In order to determine
whether Congress has abrogated the States' sovereign immunity, we ask two questions: first,
whether Congress has ‘unequivocally expresse[d] its intent to abrogate the immunity,’ . . . and
second, whether Congress has acted ‘pursuant to a valid exercise of power . . . .’” (Quoting
Green v. Mansour, 474 U.S. 64, 68 (1985) (alterations in Seminole Tribe)).
In Abril, supra, 145 F.3d at 185-89, the Fourth Circuit considered these questions with
respect to the FLSA. It determined that although the FLSA unequivocally abrogated state
sovereign immunity, see 29 U.S.C. § 216(b), Congress had not acted pursuant to a valid exercise
of power. Abril, 145 F.3d at 185-89. The Fourth Circuit’s determination was subsequently
upheld by the Supreme Court in Alden v. Maine, 527 U.S. 706, in which the Supreme Court
concluded that Congress had not acted pursuant to a valid exercise of constitutional power in
waiving sovereign immunity in the FLSA. Id. at 712, 759-60; see also Seminole Tribe, 517 U.S.

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at 72 (stating that Congress cannot use its Article I powers to abrogate Eleventh Amendment
immunity).
The Fourth Circuit has also rejected several other bases upon which Congress could
abrogate state sovereign immunity under the FLSA. It concluded that Congress could not use its
powers pursuant to Section 5 of the Fourteenth Amendment because “the inequality targeted by
the attempted abrogation here does not involve any interest at the core of the developed equal
protection concerns.” Abril, 145 F.3d at 188-89. And, the Fourth Circuit declined to find that
states impliedly waived their sovereign immunity under the FLSA simply by continuing their
“non-commercial governmental operations . . . .” Id. at 190.
Notably, the Fourth Circuit recognized “waiver by exacted consent,” by which a state
waives its sovereign immunity as a condition of receiving federal funding. However, it only
applies in narrow circumstances. Id. at 190-91. Such a waiver applies if it is shown, id. at 191:
(1) that Congress had validly funded a program or programs available for
administration by the states in the operation of their prison and mental health
facilities, and in doing so had unambiguously conditioned receipt of the federal
funding upon the states' waiver of immunity to FLSA suits by employees of those
facilities, and (2) that the [state] had received such funding and properly given the
consent required as a condition of its receipt.
But, the Fourth Circuit also stated that “it would not suffice to prove waiver if discovery
revealed no more than that the [state] had participated in federal programs in connection with
which it had agreed to comply with all relevant federal laws, including even the FLSA.” Id. at
191.
As noted, under Rule 12(b)(1), plaintiff has the burden to demonstrate the existence of
subject-matter jurisdiction. See Demetres, 776 F.3d at 272. He alleges: “In the acceptance of
federal funds defendant waived their [sic] rights . . . .” ECF 25 at 3. The exhibit cited by
plaintiff (ECF 25-20) to support his contention demonstrates only that some relationship exists

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between the Medicaid program and DHMH. Id. However, as noted by the Fourth Circuit, mere
acceptance of federal funds is not enough to demonstrate waiver. Abril, 145 F.3d at 191.
Plaintiff has not shown that the State of Maryland has waived its sovereign immunity by
exacted consent. See id. at 190-91. Indeed, in his Opposition, Tall does not argue that the State
waived its sovereign immunity by exacted consent. See ECF 25. Thus, the first exception to the
State’s sovereign immunity under the Eleventh Amendment is not available.
B.

Prospective Injunctive Relief

Sovereign immunity does not apply with respect to a claim for prospective injunctive
relief. See, e.g., Edelman v. Jordan, 415 U.S. 651, 676 (1974); Lee-Thomas, 666 F.3d at 249.
This exception derives from the Supreme Court’s decision in Ex Parte Young, 209 U.S. 123
(1908); see also Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 269-70 (1997).
In his Amended Complaint, plaintiff seeks only damages. ECF 22 at 1. Accordingly, the
second exception to the Eleventh Amendment is not available.
C.

Waiver

A state may waive its Eleventh Amendment sovereign immunity and permit suit in
federal court. See Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 618 (2002); LeeThomas, 666 F.3d at 249. But, the test to determine whether a State has waived its immunity
from suit in federal court is a “stringent” one. Atascadero State Hosp. v. Scanlon, 473 U.S. 234,
240 (1985), superseded on other grounds, as recognized in Lane v. Pena, 518 U.S. 187, 198
(1996). Under Atascadero, a court may find that a state has waived its Eleventh Amendment
immunity “only where stated by the most express language or by such overwhelming implication
from the text as will leave no room for any other reasonable construction.”
quotation marks and alteration omitted); accord Lee-Thomas, 666 F.3d at 250-51.

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Id. (internal

Neither side addressed whether Maryland has expressly waived its sovereign immunity.
However, the Maryland Court of Appeals has said that Maryland has not waived its sovereign
immunity with respect to FLSA claims where a plaintiff who is a State employee has failed to
exhaust the State’s administrative grievance process. See Robinson v. Bunch, 367 Md. 437, 44647, 788 A.2d 636, 645 (2002).
For State employees, Maryland law specifically incorporates the substantive provisions
of the FLSA. Md. Code (2015 Repl. Vol., 2016 Supp.), § 8-302 of the State Personnel and
Pensions Article (“S.P.P.”). Section 8-302 provides:
(a) This subtitle shall be interpreted and applied, to the extent applicable, in
accordance with the federal Fair Labor Standards Act.
(b) All employees subject to this subtitle are entitled to the greater of:
(1) the benefits that are provided in this subtitle; or
(2) to the extent applicable, the benefits required by the federal Fair Labor
Standards Act.
Maryland law provides a general waiver of State sovereign immunity for issues involving
State personnel, including issues arising under the substantive provisions of the FLSA. S.P.P.
§ 14-103, entitled “Limitation on defense of Sovereign Immunity”, provides:
Except as otherwise specifically provided by State law, this State, its officers, and
its units may not raise the defense of sovereign immunity in any administrative,
arbitration, or judicial proceeding involving an employee grievance or hearing
that is held under . . . (1) this Division I or a regulation adopted under it . . . .
Title 12 of the S.P.P. provides, with exceptions not applicable here, an administrative
process for employees to resolve any dispute as to the application of “(i) a personnel policy or
regulation adopted by the Secretary; or (ii) any other policy or regulation over which
management has control.” S.P.P. § 12-101(c).

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Under Title 12, aggrieved State employees must attempt to resolve disputes with
management using a three-step process. See Title 12, Subtitle 2 of the S.P.P. Prior to initiating
the first step, the aggrieved employee must “present the matter orally to the employee’s
supervisor for informal discussion.” S.P.P. § 12-202. As the first step, the aggrieved employee
files “a written grievance with the grievant’s appointing authority.” Id. at § 12-203(a). Then,
within 10 days of receiving the grievance, the appointing authority holds a conference with the
grievant and attempts to resolve the grievance. Id. at § 12-203(c).
If the first step fails to resolve the issue, the grievant may then appeal to the head of his
“principal unit.” Id. at 12-201(a)(1)(ii). The head of the principal unit, or a designee, reviews
the grievance record and confers with the grievant. Id. at § 12-204(b). Finally, if the grievance
is not resolved at step two, the aggrieved employee may appeal to the Secretary of Budget and
Management or his designee. Id. at § 12-201(a)(1)(iii); see id. at § 1-101. If the grievance is not
resolved by the Secretary or his designee, the grievance is referred to the Office of
Administrative Hearings for adjudication. Id. at § 12-205(b)(2)(iii).
Section 12-103(b) of the S.P.P. is pertinent. It is titled “Right to bring grievance;
exclusiveness of remedy.” It provides, in part, id. (boldface added):
(b) Remedy exclusive. – Unless another procedure is provided for by this article,
the grievance procedure is the exclusive remedy through which a
nontemporary employee in the State Personnel Management System may seek
an administrative remedy for violations of the provisions of this article.
In Robinson, supra, 367 Md. 437, 788 A.2d 636, the plaintiffs were current and former
employees of the Maryland Department of Public Safety and Correctional Services. Id. at 434,

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788 A.2d at 638.

They brought suit seeking overtime payments in accordance with the

provisions of the FLSA. Id.5
The Maryland Court of Appeals assumed that the substantive provisions of the FLSA
apply to State employees, but that “the remedial provisions of the federal act [do] not.” Id. at
442, 788 A.2d at 642.

Notably, the Robinson Court concluded that S.P.P. § 12-103(b)

establishes that “the Legislature intended to preclude direct judicial actions such as the present
one.” Id. at 446, 788 A.2d at 645. Of import here, the court also held that “Maryland law does
provide a statutory administrative and judicial review remedy for adjudication of the plaintiffs'
claims and that the remedy is exclusive.” Id. at 434, 788 A.2d at 639. The Robinson Court
reasoned, 367 Md. at 446, 788 A.2d at 645: “The language of § 12–103 evidences the General
Assembly's intent that the administrative and judicial review grievance procedure constitutes the
exclusive remedy for claims such as those made by the [aggrieved employees] in this case.”
Given that Maryland law provides an exclusive remedy for an FLSA claim, requiring a
Maryland State employee to pursue the administrative process and, if dissatisfied, to seek
judicial review in State court, it is evident that Maryland has not waived its sovereign immunity
with respect to an FLSA claim filed by a State employee in federal court. See S.P.P. § 14-103.
Therefore, I conclude that Maryland has not waived its immunity to suit in federal court based on
the FLSA. Rather, the State’s administrative grievance process, including judicial review in a
state circuit court, is the exclusive path that the Maryland General Assembly has created for a
current or former State employee seeking to pursue an FLSA claim.

5

Notably, the plaintiffs in Robinson initially filed suit in federal district court. Robinson,
367 Md. at 435, 788 A.2d at 639. That suit was dismissed for lack of subject matter jurisdiction.
Id.
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IV.

Conclusion

I have assumed the truth of plaintiff’s contention that he was an employee of the State.
This puts plaintiff between the proverbial “rock and a hard place.” If plaintiff is indeed a current
or former employee of the State, then he must avail himself of the exclusive administrative
process enacted by the Maryland General Assembly. In that circumstance, he is barred from suit
in federal court by the Eleventh Amendment. However, if plaintiff is not an employee of the
State, then there is no basis to sue the defendants for unpaid wages. See ECF 23-1 at 6-9.6
Moreover, none of the three exceptions to state sovereign immunity applies to this case.
Lee-Thomas, supra, 666 F.3d at 249. Congress did not abrogate state sovereign immunity as to
the FLSA pursuant to the exercise of permissible constitutional power; the suit does not seek
prospective injunctive relief; and the State of Maryland has not voluntarily waived sovereign
immunity.
Accordingly, I shall GRANT defendants’ Motion to Dismiss (ECF 23).

Because I

dismiss the FLSA claim, I decline to consider plaintiff’s supplemental claim under the MWHL.
See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966). And, as noted, I shall
DENY the Motion for Surreply (ECF 28).
An Order follows, consistent with this Memorandum.

12/29/2016

/s/
Ellen Lipton Hollander
United States District Judge

Date

6

In light of my resolution, I need not reach the other issues raised by defendants,
including that plaintiff has not adequately alleged his status as an employee. However, I note
that plaintiff’s allegations amount to little more than a bald assertion that he was an employee of
defendants.
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