Hayes v. Gorman et al

Filing 29

MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 11/6/2018. (c/m 11/6/18 cags, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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FAYE BEATRICE HAYES,
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Plaintiff,

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Civil Action No. RDB-18-0691

v.
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MARYLAND TRANSIT
ADMINISTRATION, et al.,

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Defendant.
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MEMORANDUM OPINION

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Plaintiff Faye Beatrice Hayes (“Plaintiff” or “Hayes”) brings this pro se action against
Defendants the State of Maryland, the Maryland Transit Administration (“MTA”) and
several MTA employees in their individual and official capacities (collectively,
“Defendants”), alleging violations of Title VII of the Civil Rights Act of 1964 (“Title VII”),
42 U.S.C. § 2000e, et seq.; the American with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §
12112, et seq.; the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601, et seq.;
the Maryland Fair Employment Practices Act (“MFEPA”), Md. Code Ann., State Gov’t, §
20-602 (equal opportunity policy statement), 20-606 (employment discrimination), 20-607
(unlawful compensation),1 20-702 (fair housing);2 and conspiracy to interfere with civil
rights, 42 U.S.C. § 1985. Currently pending before this Court is Defendant’s Motion to

1 An unlawful compensation claim under Maryland law requires a plaintiff to allege that her job was similar to
a higher paying job occupied by employees outside of her protected class. Crockett v. SRA Intern, 943 F. Supp.
2d 565, 573 (D. Md. 2013). Hayes has failed to state a claim under this provision because she makes no
allegations of this kind.
2 Although the Amended Complaint invokes Section 20-702, it alleges no discernible basis for a violation of
Maryland’s fair housing laws. Accordingly, Hayes has failed to state a claim under this provision.

1

Dismiss, or, in the Alternative, Motion for Summary Judgment (ECF No. 17); Plaintiff’s
Motions to Strike Affidavit of James C. Newton, Sr. (ECF No. 22) and Affidavit of Bart P.
Plano (ECF No. 23); and Plaintiff’s Motion for Leave to File Sur-reply (ECF No. 28). The
parties’ submissions have been reviewed, and no hearing is necessary. See Local Rule 105.6
(D. Md. 2016).
As further explained below, Defendant’s Motion to Dismiss, or, in the Alternative,
for Summary Judgment (ECF No. 17) is GRANTED. Specifically, Summary Judgment is
ENTERED in favor of Defendants with respect to Hayes’ ADA, FMLA, Title VII, and
MFEPA retaliation claims. All of Hayes’ remaining claims are DISMISSED. Plaintiff’s
Motions to Strike Affidavit of James C. Newton, Sr. (ECF No. 22) and Affidavit of Bart P.
Plano (ECF No. 23) are DENIED. Plaintiff’s Motion for Leave to File Sur-reply (ECF No.
28) is DENIED.
BACKGROUND
In ruling on a motion to dismiss, this Court “accept[s] as true all well-pleaded facts in
a complaint and construce[s] them in the light most favorable to the plaintiff.” Wikimedia
Found. V. Nat’ Sec. Agency, 857 F.3d 193, 208 (4th Cir. 2017) (citing SD3, LLC v. Black &
Decker (U.S.) Inc., 801 F.3d 412, 422 (4th Cir. 2015)). Further, as a pro se Plaintiff, this Court
has “liberally construed” Hayes’ pleadings and held them to “less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007); Alley v.
Yadkin County Sheriff Dept., No. 17-1249, 698 F. App’x 141, 2017 WL 4415771 (4th Cir. Oct.
5, 2017).

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On July 27, 1994 Hayes began working at the MTA as a Bus Operator; she became a
Bus Supervisor in September 2005.3 (Am. Compl. ¶¶ 2, 3, ECF No. 14.) She alleges that she
suffers from an “invisible disability” stemming from an incident that occurred prior to her
employment with the MTA which severely limits her ability to engage in daily activities. (Id.
at ¶ 4.) The incident required several surgeries and other medical procedures and forced her
to take a leave of absence from work, ending in December 2016. (Id. at ¶ 30, 33.) Since
then, Hayes’ physical condition caused her to have sporadic, unforeseeable absences from
work. (Id. at ¶ 51.) Hayes Complaint catalogues several alleged incidents of discrimination
and rights violations related to her disability and need for intermittent leave.
Request for Accommodation
Upon returning to work in December 2014 following a series of medical evaluations,
Hayes requested an ergonomic chair as an accommodation for her disability. (Id. at ¶ 33-34.)
On February 27, 2016 Hayes asked MTA representative Bart Plano for assistance obtaining
the chair. (Id. at ¶ 35.) On March 1, 2016, the MTA provided Hayes with a catalog of chairs
and allowed her indicate which chair she preferred. (Id. at ¶ 35.) On September 7, 2016, the
chair arrived. (Id. at ¶ 37.) Hayes complains that a co-worker sat in her ergonomic chair at a
mandatory staff meeting without her permission. (Id. at ¶¶ 55-59.)
Scheduling Issues
Hayes alleges that her requests for time off were handled in a discriminatory manner.
On July 5, 2016, Terri Gorman, Chief Controller, permitted Hayes to trade days off with
another employee. (Id. at ¶ 38.) Subsequently, Hayes was no longer permitted to trade days

3 Although Hayes was required to seek leave of this Court before filing an Amended Complaint nearly two
months after commencing this action, this Court liberally construes Hayes’ submissions and draws the
background of this case from her most recent pleading.

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off with other employees. (Id. at ¶ 40.)

At the same time, Ms. Gorman altered company

policy governing days off to allow another employee, David Powell, to obtain nine days off
to coach his baseball team. (Id. at ¶¶ 42-44.) In about September 2016, Hayes sought to
change her shift so that she could arrive at 6:00 am rather than 4:00 am. (Id. at ¶ 53.) Rather
than grant this request outright, Gorman directed her to swap her work hours with another
employee whose shift began at 6:00 am. (Id. at ¶ 54.) Hayes also complains that she was the
only employee on her shift scheduled to work on Thanksgiving Day 2016. (Id. at ¶ 73.)
On December 9, 2016, Powell emailed employees and explained that the MTA would
no longer schedule shifts according to employee seniority as it had done in the past. (Id. at ¶
113.) As a result, other employees with lesser seniority than Hayes were able to takes
weekends off, while her days off from work fell on Wednesdays and Thursdays. (Id. at ¶¶
114-15.)
Medical Leave
Hayes’ Complaint opines on several instances of alleged FMLA interference. On
April 13, 2016, Hayes’ request for FMLA leave was denied. (Id. at ¶ 48.) Shortly thereafter,
she received approval to take FMLA leave through April 21, 2017. (Id. at ¶ 49.) On
September 21, 2016 Gorman implemented a new policy requiring employees to provide twohours’ notice of their requests for FMLA leave. (Id. at ¶ 50.) In response, Hayes provided a
note from her surgeon to support her request to be allowed to provide notice of her leave
within one hour of her shift. (Id. at ¶ 51.) Gorman did not grant this request. (Id. at ¶ 52.)
Hayes sought leave from work on the evening of Saturday, November 12, 2016,
because of her medical condition. (Id. at ¶ 81.) Her employer granted her leave and others
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worked in her stead. (Id. at ¶¶ 83-84.) When she returned on November 15, 2016, James C.
Newton, Sr., Terri Gorman, and David Powell held a meeting with Hayes. (Id. at ¶ 86.) At
that meeting, Newton asked if she had called out of work the previous Saturday, and
explained that he had reason to believe that she had attended an event while she claimed to
be on medical leave. (Id. at ¶¶ 87-88.) This greatly upset Hayes: her heart rate increased, her
breath quickened, and her muscles tightened. (Id. at ¶ 89.) In her car, she experienced an
“emotional, mental breakdown.” (Id. at ¶ 91.) She drove to Concentra Medical Center for
treatment, but was unable to obtain medical care. (Id. at ¶¶ 92-93.)
Internal Complaints
Following these incidents, Hayes alleges that she made several internal complaints to
various MTA employees. On November 16, 2016, she complained to Senior Executive Sean
Adgerson and Bart P. Plano about “unlawful employment action.”

(Id. at ¶ 10.)

In

response, Adgerson explained that he “knew all about the chair.” (Id.) The next day, Hayes
attempted to contact MTA Administrator Paul Comfort to register another complaint, but
her comments were re-routed to Adgerson and Plano. (Id. at ¶ 12.) Hayes made additional
attempts to contact Comfort via email in November and December. (Id. at ¶ 13.) On
December 14, 2016, Hayes contacted Senior Executive Peter Tollini to discuss her
complaints and warned him that she intended to file charges with the EEOC. (Id. at ¶ 22.)
Tollini replied that he “saw the Facebook post.” (Id.)
Employment Termination
After her November 15, 2016 meeting with MTA management, Hayes had difficultly
returning to work. On November 17, 2016 she attended an appointment with her doctor
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who issued her a “work slip” with a return date of December 1, 2016. (Id. at ¶ 16.) On
January 4, 2017, Hayes attended another medical appointment and obtained another work
slip with a return date of February 2, 2017. (Id. at ¶ 18.)
On November 23, 2016 Hayes was scheduled to attend a “mitigating circumstances
conference” to discuss allegations against her for inappropriately using FMLA leave and
making false statements to management.

(Id. at ¶¶ 95-96.)

Hayes did not see email

correspondence concerning this call until November 27, 2016. (Id. at ¶ 94.)

Shortly

thereafter, Hayes was informed that she had been accused of lying about the circumstances
of her leave from work on November 12, 2016. (Id. at ¶ 98.) Specifically, her employer
claimed that a Facebook picture showed her attending the Park Heights Reunion at the
Pimlico Race Track that evening. (Id. at ¶ 110.)
Based on these allegations, Hayes was suspended without pay for five days from
December 14, 2016 to December 20, 2016. (Id. at ¶¶ 111-12.) On December 22, 2016 Hayes
filed an initial Charge of Discrimination with the Equal Employment Opportunity
Commission (“EEOC”). (Aff. of Bart P. Plano at ¶ 7, ECF No. 17-2.) On February 3, 2017
Bart Plano, MTA Lead EEOC Compliance Officer, received notice of this Charge. (Def.’s
Ex. 1, Attach. 1, ECF No. 17-3.) Hayes also submitted a “Disciplinary Action Appeal
Form” to challenge her suspension. (Def.’s Ex. 1, Attach. 3, ECF No. 17-5; Am. Compl. ¶¶
112, 126.) On this form, Hayes wrote that she “did not attend the reunion, I only dropped
someone off” and alleged that she was being retaliated against for taking FMLA leave. (ECF
No. 17-5.) Subsequently, Hayes received a letter from her employer dated January 13, 2017
captioned “Notification of Resignation without Notice.” (Def.’s Ex. 1, Attach. 4, ECF No.
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17-6; Compl. ¶¶ 25, 128.) The letter explained that she had effectively resigned by failing to
contact her employer for five consecutive days about her leave of absence. (Def.’s Ex. 1,
Attach. 4; Compl. ¶ 127.)
On January 26, 2017 Hayes filed an Amended Charge of Discrimination with the
EEOC. (Aff. of Bart P. Plano at ¶ 7; Am. Compl. ¶ 23.) The EEOC issued her a right to sue
letter on December 16, 2017.4 (Am. Compl. ¶ 23.) On March 8, 2018 Hayes filed this
lawsuit. Defendants have filed a Motion to Dismiss, or, in the Alternative, Motion for
Summary Judgment. (ECF No. 17.)
Standard of Review
I.

Motion to Dismiss Pursuant to Rule 12(b)(1)
Defendants assert that some of Plaintiff’s claims are barred because Defendants are

entitled to immunity under the Eleventh Amendment. This Court treats motions to dismiss
based on the Eleventh Amendment under Federal Rule of Civil Procedure 12(b)(1). See
Beckham v. National R.R. Passenger Corp., 569 F. Supp. 2d 542 (D. Md. 2008) (“[A]lthough
Eleventh Amendment immunity is not a ‘true limit’ on this Court’s subject matter
jurisdiction, . . . 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.”); see also Cook v. Springfield Hospital Center, No. ELH-16-2024, 2016 WL
6124676, at *6 (D. Md. Oct. 19, 2016).

4 In Maryland, a deferral state, a Title VII claim of discrimination must be filed with the EEOC within 300
days of the alleged discriminatory action. EEOC v. R & R Ventures, 244 F.3d 334, 338 n.1 (4th Cir. 2001). If
the EEOC dismisses the charge, or if the plaintiff requests a right to sue notice, a plaintiff has ninety days
from receiving his or her notice of dismissal and right to sue letter to file an action in court. 42 U.S.C. § e5(f)(1).

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A motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction
challenges a court’s authority to hear the matter brought by a complaint. See Davis v.
Thompson, 367 F.Supp.2d 792, 799 (D. Md. 2005). Under Rule 12(b)(1), the plaintiff bears
the burden of proving, by a preponderance of the evidence, the existence of subject matter
jurisdiction. Demetres v. East West Const., Inc., 776 F.3d 271, 272 (4th Cir. 2015); Lovern v.
Edwards, 190 F.3d 648, 654 (4th Cir. 1999). A challenge to jurisdiction under Rule 12(b)(1)
may proceed either as a facial challenge, asserting that the allegations 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,
192 (4th Cir. 2009) (citation omitted).
II.

Motion to Dismiss Pursuant to Rule 12(b)(6)
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain

a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the
dismissal of a complaint if it fails to state a claim upon which relief can be granted. Fed. R.
Civ. P. 12(b)(6). The purpose of Rule 12(b)(6) is “to test the sufficiency of a complaint and
not to resolve contests surrounding the facts, the merits of a claim, or the applicability of
defenses.” Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). While a complaint
need not include “detailed factual allegations,” it must set forth “enough factual matter
(taken as true) to suggest” a cognizable cause of action, “even if . . . [the] actual proof of
those facts is improbable and . . . recovery is very remote and unlikely.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555-56 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff
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cannot rely on bald accusations or mere speculation. Twombly, 550 U.S. at 555.
In reviewing a Rule 12(b)(6) motion, a court “‘must accept as true all of the factual
allegations contained in the complaint’” and must “‘draw all reasonable inferences [from
those facts] in favor of the plaintiff.’” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637
F.3d 435, 440 (4th Cir. 2011) (citations omitted); Hall v. DirectTV, LLC, 846 F.3d 757, 765
(4th Cir. 2017). However, a court is not required to accept legal conclusions drawn from
those facts. Iqbal, 556 U.S. at 678. “A court decides whether [the pleading] standard is met
by separating the legal conclusions from the factual allegations, assuming the truth of only
the factual allegations, and then determining whether those allegations allow the court to
reasonably infer” that the plaintiff is entitled to the legal remedy sought. A Society Without A
Name v. Virginia, 655 F.3d 342, 346 (4th Cir. 2011), cert. denied, 566 U.S. 937 (2012).
While federal courts are obliged to liberally construe a pro se litigant’s claims in
applying the above analysis, this requirement “does not transform the court into an
advocate.” United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012) (internal quotations and
citations omitted). The Fourth Circuit has noted that “[w]hile pro se complaints may
‘represent the work of an untutored hand requiring special judicial solicitude,’ a district court
is not required to recognize ‘obscure or extravagant claims defying the most concerted
efforts to unravel them.’” Weller v. Dep’t of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990)
(quoting Beaudett v. City of Hampton, 775 F.2d 1274, 1277 (4th Cir. 1985), cert. denied, 475 U.S.
1088 (1986)).
III.

Motion for Summary Judgment

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Rule 56 of the Federal Rules of Civil Procedure provides that a court “shall grant
summary judgment if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A
material fact is one that “might affect the outcome of the suit under the governing law.”
Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, summary judgment is proper “only when no
‘reasonable jury could return a verdict for the nonmoving party.’” Monon Corp. v. Stoughton
Trailers, Inc., 239 F.3d 1253, 1257 (Fed. Cir. 2001) (quoting Anderson, 477 U.S. at 255)). When
considering a motion for summary judgment, a judge’s function is limited to determining
whether sufficient evidence exists on a claimed factual dispute to warrant submission of the
matter to a jury for resolution at trial. Anderson, 477 U.S. at 249.
In undertaking this inquiry, this Court must consider the facts and all reasonable
inferences in the light most favorable to the nonmoving party. Libertarian Party of Va., 718
F.3d at 312; see also Scott v. Harris, 550 U.S. 372, 378 (2007). However, this Court must also
abide by its affirmative obligation to prevent factually unsupported claims and defenses from
going to trial. Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993). If the evidence
presented by the nonmoving party is merely colorable, or is not significantly probative,
summary judgment must be granted. Anderson, 477 U.S. at 249-50. On the other hand, a
party opposing summary judgment must “do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986); see also In re Apex Express Corp., 190 F.3d 624, 633 (4th Cir. 1999).
As this Court has previously explained, a “party cannot create a genuine dispute of material
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fact through mere speculation or compilation of inferences.” Shin v. Shalala, 166 F. Supp. 2d
373, 375 (D. Md. 2001) (citations omitted).
ANALYSIS
I.

Motion to Dismiss, or, in the Alternative, for Summary Judgment
a. Sovereign Immunity
In moving to dismiss Hayes’ ADA and FMLA claims, the MTA contends that it is

entitled to sovereign immunity under the Eleventh Amendment. (Def.’s Mem. Mot. to
Dismiss 13, ECF No. 17-1.) This Court recognizes that “the ultimate guarantee of the
Eleventh Amendment is that nonconsenting States may not be sued by private individuals in
federal court.” Bd. of Trs. of Univ. of Alabama v. Garrett, 531 U.S. 356, 363 (2001) (citing Kimel v.
Florida Bd. of Regents, 528 U.S. 62, 73 (2000)). Given this guarantee, Congress may abrogate a
state’s Eleventh Amendment sovereign immunity only where “it both unequivocally intends
to do so and ‘act[s] pursuant to a valid grant of constitutional authority.” Garrett, 531 U.S. at
363 (quoting Kimel, 528 U.S. at 73).
The United States Supreme Court has concluded that while Congress certainly
intended for the “self-care” provision of the FMLA and Title I of the ADA to apply to the
states, Congress did not validly abrogate state sovereign immunity in either case. Coleman v.
Court of Appeals of Maryland, 566 U.S. 30, 43-44, 132 S. Ct. 1327, 1338 (2012) (plurality
opinion) (FMLA); Garrett, 531 U.S. at 364, 374 (ADA). Eleventh Amendment immunity
thus bars suits for money damages under the self-care provision of the FMLA and Title I of
the ADA in federal court against the states, state agencies (and any sub-agencies therein),
and state officials. Coleman, 566 U.S. at 43-44; Garrett, 531 U.S. at 374; see also McCray v.
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Maryland Dep’t of Trasnp., 741 F.3d 480, 483 (4th Cir. 2014) (explaining that a plaintiff
“cannot seek . . . monetary relief from . . . the MTA”).

Accordingly, the Eleventh

Amendment bars Hayes from seeking monetary relief under the ADA and FMLA against
Defendant MTA.
Hayes, however, also seeks prospective injunctive relief in the form of reinstatement.
(Am. Compl. 27.)

As an exception to Eleventh Amendment immunity, plaintiffs may seek

prospective injunctive relief against state officials acting in violation of federal law. Frew ex
rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004). This exception, known as the Ex Parte Young
exception, was articulated by the United States Supreme Court in Ex Parte Young, 209 U.S.
123, 28 S. Ct. 441 (1908) and allows private citizens to petition federal courts to enjoin State
officials in their official capacities from engaging in future conduct that would violate a
federal statute or the Constitution. In Bland v. Roberts, 730 F.3d 368 (4th Cir. 2013), the
United States Court of Appeals for the Fourth Circuit explained that “[b]ecause
reinstatement is a form of prospective relief, the refusal to provide that relief when it is
requested can constitute an ongoing violation of federal law such that the Ex parte Young
exception applies.” See also Royster v. Gahler, 154 F. Supp. 3d 206, 231 (D. Md. 2015) (finding
the defendant was not entitled to Eleventh Amendment immunity because the Plaintiff
sought reinstatement.) Accordingly, the State Defendants are not immune from Plaintiff’s
claims to the extent she seeks injunctive relief in the form of reinstatement.
b. Administrative Exhaustion
Defendants argue that many of Hayes’ claims are barred because she failed to include
them in her her Amended Charge of Discrimination. (Def.’s Mem. Mot. 15.) To properly
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bring a lawsuit alleging discrimination or retaliation in violation of Title VII, the plaintiff
“must first file an administrative charge with the EEOC within a certain time of the alleged
unlawful act.” Chacko v. Pateuxent Inst., 429 F.3d 505, 508 (4th Cir. 2005) (citing 42 U.S.C. §
2000e-5(e)(1)). This requirement “ensures that the employer is put on notice of the alleged
violations” and facilitates administrative resolution of claims. Dydnor v. Fairfax County, 581
F.3d 591, 593 (4th Cir. 2012). The “failure by the plaintiff to exhaust administrative remedies
concerning a Title VII claim deprives the federal court of subject matter jurisdiction over the
claim.” Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009).
In a lawsuit following an EEOC charge, a federal court may only consider the
allegations included in the charge. Balas v. Huntington Ingalls Industries, Inc., 711 F.3d 401, 407
(4th Cir. 2013). Claims that “exceed the scope of the EEOC charge, and any changes that
would naturally have arisen from an investigation thereof, are procedurally barred.” Id. at
407-08 (quoting Chacko, 429 F.3d at 506). Allegations which appear for the first time in the
Complaint satisfy the administrative exhaustion requirement so long as they are “reasonably
related” to the facts contained in the administrative charge. Sydnor, 681 F.3d at 595.
Administrative charges which feature “different time frames, actors, and conduct” than
those contained in a subsequently filed Complaint do not meet the requirement. Chacko, 429
F.3d at 506. The same standard governs Title VII, ADA, and Maryland state discrimination
claims. Thompson v. Golden M Co., WDQ-14-3254, 2015 WL 3888753, at *3 (D. Md. June 22,
2015); Snead v. Bd. Of Educ. Of Prince George’s Cnty., 815 F. Supp. 2d 889, 894 (D. Md. 2011).
Hayes’ Amended Charge of Discrimination includes the following factual assertions
to support her claims: in July 2016, Terri Gorman denied Hayes’ request to switch days off
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with another employee, but permitted David Powell to do so; in March 2016, Gorman
refused Hayes’ request to provide only one-hour notice before taking a leave of absence
instead of two-hour notice as her employer required; in November 2016, Sean Adgersen and
James Newton suspended Hayes’ employment while she was taking sick leave; upon
returning to work in January 6, 2017, she was informed that she had resigned from her
position; she was denied a reasonable accommodation; she was not paid during her sick
leave; and she was suspended and discharged in retaliation for engaging in a protected
activity in violation of Title VII. (Def.’s Ex. 1, Attach. 2, ECF No. 17-4.) On the form
provided by the EEOC, Hayes checked boxes next to Retaliation, Sex, and Disability. (Id.)
Charitably construed, Hayes’ EEOC Charge alleges that her employer violated Title VII by
denying her requests for scheduling modifications while granting similar requests to a male
co-worker; failed to accommodate her disability; and interfered with her FMLA leave by
refusing her request to provide short notice for her leave of absences; and that she faced
retaliation for pursuing FMLA leave and seeking an accommodation under the ADA.
Hayes’ Amended Complaint introduces many new factual allegations to support her
claims. Among these new facts, Hayes alleges that she made three internal complaints to
various MTA personnel, including Senior Executive Paul Comfort and Senior Executive
Peter Tollini about “unlawful employment action” and “prohibited employment practices.”
(Am. Compl. ¶¶ 10, 12, 22.) The EEOC charge did not provide adequate notice of these
internal complaints. These new facts are unlike anything described in the Charge—the
complaints were addressed to individuals whom the Charge did not identify, and they have
been proffered to support a new theory that Hayes faced retaliation for making internal
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complaints of discrimination. Hayes’ Amended Complaint introduces vastly different facts,
involving new actors, to support a brand new theory of retaliation. Accordingly, this Court
lacks subject matter jurisdiction over Hayes’ claims of retaliation based on filing internal
complaints.
Hayes Complaint also records her requests to obtain an ergonomic chair, which the
MTA subsequently provided to her, and her disapproval upon discovering that a coworker
was permitted to sit in it. Very little in the EEOC charge foreshadows such a claim. It
involves a new form of requested accommodation and features new actors, all unnamed in
the charge: Patricia Johnson, Bart Plano, and Salon Emptage. These new retaliation claims
and ADA claims have not been properly exhausted. Accordingly, this Court lacks subject
matter jurisdiction over Hayes’ claim that her employer failed to accommodate her disability
by providing her with a chair in a timely manner as well as her claim that her employer
interfered with her ADA accommodation by allowing another employee to sit in her chair.
Other details in Hayes’ Amended Complaint, however, merely fill in the gaps of the
general assertions in her EEOC charge. Much of Hayes’ Amended Complaint focuses on
the activities of Sean Adgerson, Terri Gorman, James C. Newton, and David Powell—all
named in her administrative charge. The relevant matter contained in this pro se Complaint
concerns the same type of discrimination alleged in her EEOC charge, including instances in
which Hayes experienced problems securing leave from work or was allegedly retaliated
against for pursuing FMLA leave. Accordingly, Hayes’ claims under the ADA, Title VII,
FMLA, and MFEPA based on her requests for leave, scheduling problems, her suspension,

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and retaliation are not precluded by a failure to satisfy administrative exhaustion
requirements.5
c. Discrimination Claims under Title VII and MFEPA
Defendants next contend that the Complaint fails to allege sex discrimination under
Title VII or MFEPA. As the United States Court of Appeals for the Fourth Circuit recently
explained in Swaso v. Onslow County Bd. of Educ., No. 16-2347, 698 Fed. App’x. 745 (4th Cir.
Aug. 10, 2017), a plaintiff may establish discrimination under Title VII by showing direct or
circumstantial evidence that the plaintiff’s status in a protected class was a motivating factor
in an adverse employment action, or by relying on the burden-shifting scheme established by
the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Swaso, 698 Fed. App’x. at 747 (citing Holland v. Wash. Homes, Inc., 487 f.3d 208, 213-14 (4th
Cir. 2007)). Under the McDonnel Douglas framework, the plaintiff must first make out a prima
facie case of discrimination by showing that (1) she is a member of a protected class; (2) her
or his job performance was satisfactory; (3) she was subjected to an adverse employment
action; and (4) “the adverse employment action occurred ‘under circumstances giving rise to
an inference of unlawful discrimination’ [which can be] met if ‘similarly-situated employees
outside the protected class received more favorable treatment.’” Id. (quoting Adams v. Tr. of
Univ. of N.C.-Wilmington, 640 F.3d 550, 558 (4th Cir. 2011); White v. BFI Waste Servs., LLC,
375 F.3d 288, 295 (4th Cir. 2004)).

5 Some assertions in the Complaint are immaterial for other reasons. Hayes’ reference to an incident
involving a fatal accident under the heading “Claim Five” does not support any of her claims. (Compl. ¶¶ 6271.) Moreover, Hayes’ references to confidential settlement communications are not pertinent to this matter.   

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While a plaintiff does not need to plead a prima facie case to survive a motion to
dismiss, she must meet the ordinary pleadings standard under Twombly and Iqbal. McClearyEvans v. Md. Dep’t of Transp., 780 F.3d 582, 584-85 (4th Cir. 2015) (explaining that a plaintiff
is still “required to allege facts to satisfy the elements of a cause of action” under Title VII);
Johnson v. Lemonds, No. 1:15-cv-410, 2016 WL 447494 (M.D.N.C. Feb. 4, 2016) (summarizing
the tension between Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), holding that a plaintiff
does not need to plead a prima facie case of employment discrimination at the motion to
dismiss stage, with the subsequent holdings in Iqbal and Twombly that a complaint must
include sufficient factual matter to plead a plausible claim). An adverse action necessary to
support a discrimination claim is a “significant change in employment status, such as hiring,
firing, failing to promote, reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits.” Swaso v. Onslow County Bd. of Educ., 698
Fed. App’x 745, 748 (4th Cir. 2017) (quoting Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th
Cir. 2011).
In this case, Hayes alleges that she was not permitted, on at least one occasion, to
trade time off from work with other employees while a male colleague was permitted to take
several days off. (Am. Compl. ¶¶ 38-45.) The MTA’s alleged unfair refusal to allow Hayes to
trade days off does not amount to an adverse action. Hayes’ Complaint does not discuss
how frequently her requests of this kind were denied, nor does she allege that her denied
request to trade time off resulted in a significant change in benefits, salary, or status. Instead,
she asserts that one such request was approved on July 5, 2016, and that “subsequently, I
was denied [sic] to trade days again.” (Id. at ¶¶ 38-40.) She also explains that Terri Gorman
17

“altered the trading days agreement policy” to benefit a male coworker, David Powell, but
does not explain how Gorman altered the policy or how the alteration affected her ability to
obtain leave from work, if at all. (Id. at ¶¶ 43-44.) Such vague assertions do not demonstrate
that Hayes suffered an adverse action. Accordingly, Hayes’ claims of discrimination under
Title VII and the MFEPA are DISMISSED.
d. FMLA Interference
Under “Claim Three” of her Amended Complaint, captioned “Unforeseen FMLA
Interference,” Hayes asserts that Defendants did not allow her to provide notice of her
intent to take leave from work one hour in advance of her shifts. (Am. Compl. ¶¶ 51-52.)
Defendants argue, inter alia, that their refusal to permit her to call out of work one hour in
advance of her shift cannot form a basis for an FMLA interference claim. (Def.’s Mem.
Mot. 18-20.)
The FMLA “entitles eligible employees to take up to twelve weeks of unpaid leave in
any twelve-month period for qualifying medical or family reasons.” See 29 U.S.C. § 2612(a)
“To establish unlawful interference with an entitlement to FMLA benefits, an employee
must prove that: (1) she was an eligible employee; (2) her employer was covered by the
statute; (3) she was entitled to leave under the FMLA; (4) she gave her employer adequate
notice of her intention to take leave; and (5) the employer denied her FMLA benefits to
which she was entitled.” Sherif v. University of Maryland Medical Center, 127 F.Supp.3d 470, 477
(D. Md. 2015). An employee must provide an employer with notice of unforeseeable leave
“as soon as practicable under the facts and circumstances of the particular case.” 29 C.F.R. §
825.303(a). The notice must contain “sufficient information for an employer to reasonably
18

determine whether the FMLA may apply to the leave request” Id. § 825.303(b). “Thus, for
example, [c]alling in sick without providing more information will not be considered
sufficient notice to trigger an employer’s obligations under the act.” Greene v. YRC, 987 F.
Supp. 2d 644, 653 (D. Md. 2013) (quoting 29 C.F.R. § 825.303(b)).
Hayes’ allegation that Defendants refused to grant her carte-blanche to call out of
work one hour in advance of her shifts fails to establish a plausible FMLA interference
claim.6 Hayes alleges that her surgeon “put something in writing for me to give a one-hour
notification when calling out for FMLA” and that Gorman “would not comply with my
surgeon’s letter.” (Am. Compl. ¶¶ 51-52.) By requesting blanket authorization to call out
sick one-hour in advance of her shifts, Hayes failed to meet the FMLA’s requirement that
she provide her employer with sufficient notice and information concerning her requested
FMLA leave. Accordingly, Hayes has failed to state a claim for FMLA interference.7
e. Conspiracy under 42 U.S.C. § 1985
To support a claim of conspiracy in violation of 42 U.S.C. § 1985, a plaintiff must
show: (1) a conspiracy of two or more persons, (2) who are motivated by a specific classbased, invidiously discriminatory animus to (3) deprive the plaintiff of the equal enjoyment
of rights secured by the law to all, (4) and which results in injury to the plaintiff as (5) a

6 Hayes also claims that Terri Gorman asked her to “try to change your work hours with David Powell” when
she requested a scheduling change that would allow her to begin her shifts at 6 a.m. (Am. Compl. ¶¶ 53-54.)
The Complaint does not discuss the result of this conversation or explain whether Hayes ever discussed this
option with Powell. Accordingly, this vague assertion fails to state a claim of any type. Finally, Hayes alleges
that she was denied FMLA leave on April 13, 2016 but was subsequently approved for FMLA leave for the
time period spanning from April 21, 2016 to April 21, 2017. (Id. ¶¶ 48-49.) Hayes offers no additional factual
information about these occurrences. Accordingly, these allegations fail to support an FMLA interference
claim.
7 The structure of Hayes’ Complaint suggests that she is not alleging a violation of the ADA based on her
employer’s refusal to grant her permission to call out of work one-hour in advance of her shifts. Hayes has
confirmed this, writing “[m]y issue with a two-hour call out had nothing to do with ADA.” (Pl.’s Opp. 4,
ECF No. 21.)

19

consequence of an overt act committed by the defendants in connection with the conspiracy.
Womack v. Owens, 736 Fed. App’x 356, 358 (4th Cir. 2018) (quoting Thomas v. Salvation Army S.
Terr., 841 F.3d 632, 637 (4th Cir. 2016)). “Allegations of ‘parallel conduct and a bare
assertion of a conspiracy’ are not enough for a claim to proceed.” Id.
Hayes’ Amended Complaint fails to state a plausible claim for conspiracy. Hayes
merely alleges that Defendants “acted as a cluster” and adjusted policies, procedures, and
work schedules to suit their whims. (Am. Compl. ¶ 8.) This bare assertion, unsupported by
any additional factual contentions, cannot suffice to support an allegation that Defendants
conspired to deprive her of certain rights.
f. Individual Defendants
Hayes has sued numerous MTA employees in both their official and individual
capacities. These individual supervisors may not be held liable for violations under Title VII,
the ADA, FMLA, or MFEPA. Lissau v. Southern Food Servs., Inc., 159 F.3d 177, 180 (41h Cir.
1998) (Title VII); Baird ex ref. Baird v. Rose, 192 F.3d 462, 472 (4th Cir.1999) (ADA); Mattison
v. MTA, RDB-15-1627, 2016 WL 2898020, at *6 (D. Md. May 18, 2016) (FMLA); Jackson v.
Baltimore Police Dep’t., WDQ-11-3569, 2013 WL 1121412, at *4 n.14 (D. Md. March 15, 2013)
(MFEPA). Accordingly, they are dismissed as to all of Plaintiff’s claims.
g. Retaliation Claims
Hayes alleges that Defendants retaliated against her by issuing her a five-day
suspension and by terminating her employment. (Am. Compl. ¶¶ 8, 81-93.) Defendants
contend that she was suspended based on evidence that she had lied about requiring FMLA
leave on November 12, 2016 and that she resigned her employment by failing to contact her
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employer for five days while she was absent from work. (Def. Mem. Mot. to Dismiss 2023.)
When, as in this case, the plaintiff relies upon circumstantial evidence of misconduct
in support of a retaliation claim, the burden-shifting framework of McDonnell Douglas Corp.
applies. (See ECF No. 1 at ¶¶ 57-62.) A plaintiff first must establish a prima facie case of
retaliation by showing that: “(1) he engaged in protected activity; (2) [the employer] acted
adversely against him; and (3) the protected activity was causally connected to the adverse
action.” Holland v. Washington Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007)). Once the
employee establishes a prima facie case, the burden shifts to the employer to rebut the
inference of retaliation. McDonnell Douglas, 411 U.S. at 802. Although the employer’s burden
is not onerous, it must articulate “some legitimate, nondiscriminatory reason” for the
adverse employment action.

Id.

Once the employer produces a legitimate,

nondiscriminatory reason, the burden returns to the plaintiff to prove that the defendant’s
stated reason is pretextual. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).
To that end, the employee must either show that the employer’s explanation is “‘unworthy
of credence’ or . . . offer[] other forms of circumstantial evidence sufficiently probative of”
the retaliation. Mereish v. Walker, 359 F.3d 330, 332 (4th Cir. 2004); see also McGrath-Malott v.
Maryland, 565 F. Supp. 2d 656, 670-71 (D. Md. 2008).

This same framework governs all

of Hayes’ potential claims of retaliation. See Savage v. Maryland, 896 F.3d 260, 276 (4th Cir.
2018) (Title VII); Vannoy v. Fed. Reserve Bank of Richmond, 827 F.3d 296, 304 (4th Cir. 2016)
(FMLA); Hawkins v. Leggett, 955 F. Supp. 2d 474, 497 (D. Md. June 24, 2013) (MFEPA);
Reynolds v. American Nat. Red Cross, 701 F. 3d 143, 154 (4th Cir. 2012) (ADA).
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Hayes has failed to make out a prima facie case of retaliation with regard to her
December 22, 2016 EEOC Charge because she cannot show that her employer retaliated
against her for filing this Charge. To establish causation, Hayes must at least show that her
employer was aware of her protected activity. Hooven-Lewis v. Caldera, 249 F.3d 259, 278 (4th
Cir. 2001); Gibson v. Old Town Trolley Tours of Washington, D.C., Inc., 160 F.3d 177, 182 (4th Cir.
1998).

Defendants argue that they were not aware of the Charge until after Hayes’

employment with the MTA ended. (Def.’s Mem. Mot.to Dismiss 20.) They have produced
the Affidavit of Bart P. Plano, Chief EEOC Compliance Officer, which claims that his office
did not receive notice of the charge until February 3, 2017. (Aff. of Bart P. Plano at ¶ 7,
ECF No. 17-2.) Email correspondence from the EEOC dated February 3, 2017 notifying
Plano of Hayes’ Charge corroborates the claim. (ECF No. 17-3.) Hayes has produced
nothing to challenge this evidence. Accordingly, any claim of retaliation based upon her
EEOC Charge is unavailing.
Hayes, however, has established a prima facie case of retaliation based on pursuing
FMLA leave. Close temporal proximity between protected activity and an adverse action
suffices to establish a prima facie case of retaliation. Yashenko v. Harrah’s N.C. Casino Co.,
LLC, 446 F.3d 541, 551 (4th Cir. 2006). Here, the record supports Hayes’s claim that her
employer approved her for FMLA leave sometime in December 2016 or January 2017 and
that she was scheduled to return to work on January 4, 2017. She was suspended in
December 2016, and her employment was terminated in January 2017. Because Hayes
engaged in protected activity (taking FMLA leave), was suspended, and ultimately lost her
job all within a two-month period, she has established a prima face case of retaliation.
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Nevertheless, Hayes has failed to establish that Defendants’ proffered explanations
for her suspension were pretextual. Defendants argue that her employment was suspended
because the MTA had evidence that she attended a party at Pimlico Racetrack while claiming
to require FMLA leave. (Def.’s Mem. Mot. 21; Aff. of Bart Plano at ¶ 8.) James C. Newton,
Sr., the MTA Deputy Director of the Office of the Operations Control Center, attests that in
November 2016, his office obtained a picture of Hayes attending a party in spite of her
representations that she required FMLA leave at the time. (Aff. of James C. Newton, Sr. at ¶
6.) Defendants have produced this picture. (Def.’s Ex. 2, Attach. 3, ECF No. 17-11.) The
photograph purportedly shows Hayes wearing black clothes, as required by the event
organizers. (Id.; Def.’s Ex. 2, Attach. 2, ECF No. 17-10.) Moreover, Defendants have
produced a “Disciplinary Action Appeal Form” under Hayes’ signature which alleges that
she “did not attend the reunion, I only dropped someone off.” (Def.’s Ex. 2, Attach. 3.) In
Response, Hayes only disputes the authenticity of the photograph by arguing that it could have
been manipulated. (Pl.’s Resp. ¶¶ 14-16.) This does not establish a genuine issue of material
fact.

The evidence clearly supports Defendant’s good faith belief to suspend Hayes’

employment. Hayes has not produced any evidence to challenge Defendant’s proffered
explanation.

Accordingly, Hayes’ retaliation claims arising from her suspension cannot

survive summary judgment.
Finally, Hayes has failed to produce evidence to challenge her employer’s explanation
for her employment termination. Defendants argue that Hayes effectively resigned from her
employment by remaining absent from work without contacting her employer.

(Def.’s

Mem. Mot. 22.) They have provided a contemporaneous letter from the MTA explaining
23

her dismissal on these grounds. (Def.’s Ex. 1, Attach. 4, ECF No. 17-6.) Hayes has not
produced evidence of any kind to refute this assertion. Accordingly, Hayes has not met her
burden to show that there is a genuine issue of fact with regard to her claims of retaliatory
termination. Because Hayes has failed to muster any evidence to challenge her employer’s
proffered explanations for her suspension and employment termination, her retaliation
claims under any theory—whether under the ADA, the FMLA, Title VII, or the MFEPA—
must fail.
II.

Motions to Strike Affidavits and Leave to File Sur-reply
Finally, Hayes has filed a Motion for Leave to File a Sur-reply. In general, parties are

not permitted to file sur-replies. Local Rule 105.2(a) (D.Md.2011). A party moving for leave
to file a sur-reply must show a need for a sur-reply. Id. If a defendant raises new legal issues
or new theories in its reply brief, there is a basis to permit a plaintiff to file a sur-reply.
TECH USA, Inc. v. Evans, 592 F.Supp.2d 852, 862 (D. Md. 2009); Interphase Garment Solutions,
LLC v. Fox Television Stations, Inc., 566 F.Supp.2d 460, 466 (D. Md. 2008). Moreover,
“[s]urreplies may be permitted when the moving party would be unable to contest matters
presented to the court for the first time in the opposing party's reply.” See Khoury v. Meserve,
268 F. Supp. 2d 600, 605 (D. Md. 2003).
Defendants have raised no new issues in their Reply, but have merely challenged the
arguments set forth in Plaintiff’s Response. Moreover, Plaintiff seeks to submit her Surreply not to address new issues raised by Defendants, but to further discuss the allegations of
her Complaint and submit additional legal authorities—all steps she could have taken in
response to Defendants’ Motion. Accordingly, Plaintiff’s Motion is DENIED.
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Finally, Hayes has moved to strike the affidavits of James C. Newton and Bart P.
Plano. Hayes has provided no legal basis for striking these affidavits, but merely disputes the
factual allegations contained in them. Accordingly, these Motions are DENIED.
CONCLUSION
For the reasons stated above, Defendant’s Motion to Dismiss, or, in the Alternative,
for Summary Judgment (ECF No. 17) is GRANTED. Specifically, Summary Judgment is
ENTERED in favor of Defendants with respect to Hayes’ ADA, FMLA, Title VII, and
MFEPA retaliation claims. All of Hayes’ remaining claims under the ADA, FMLA, Title
VII, MFEPA, and 42 U.S.C. § 1985 are DISMISSED. Plaintiff’s Motions to Strike Affidavit
of James C. Newton, Sr. (ECF No. 22) and Affidavit of Bart P. Plano (ECF No. 23) are
DENIED. Plaintiff’s Motion for Leave to File Sur-reply (ECF No. 28) is DENIED.
A separate order follows.
Dated:

November 6, 2018
/s/
Richard D. Bennett
United States District Judge

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