Reyazuddin v. Montgomery County, Maryland

Filing 56

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 10/18/12. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
YASMIN REYAZUDDIN
:
v.

:

Civil Action No. DKC 11-0951

:
MONTGOMERY COUNTY, MARYLAND
:
MEMORANDUM OPINION
Presently

pending

and

ready

for

resolution

in

this

disability discrimination case is a motion filed by Plaintiff
Yasmin Reyazuddin for leave to file an amended or supplemental
complaint.

(ECF No. 53).

The issues are fully briefed and the

court now rules pursuant to Local Rule 105.6, no hearing being
deemed necessary.

For the reasons that follow, the motion will

be granted.
I.

Background
Plaintiff Yasmin Reyazuddin commenced this action on April

12, 2011, by filing a complaint against Defendant Montgomery
County,

Maryland

(“the

County”),

alleging

disability

discrimination in violation of § 504 of the Rehabilitation Act
of 1973.

Plaintiff alleged in her complaint that the County

violated the Rehabilitation Act by failing to make reasonable
accommodations for her disability and by failing to provide her
with alternative employment appropriate for her skill level and

experience.
“[b]ecause

As
of

relevant

its

here,

receipt

of

the

complaint

federal

recited

financial

that,

assistance,

including financial assistance in the Department of Health and
Human Services and Office of Public Information[,] the County is
subject to the provisions of the Rehabilitation Act of 1973, 29
U.S.C. § 701 et seq.”

(ECF No. 1 ¶ 5).

The County timely filed an answer on September 1, 2011.

In

response to Plaintiff’s allegation regarding federal funding,
the

County

admitted

that

it

“receives

federal

funding

but

denie[d] that any federal funding was received in connection
with the implementation of the [consolidated call] [c]enter.”
(ECF No. 10 ¶ 5).

The next day, the court issued a scheduling

order establishing, inter alia, a deadline of October 17, 2011,
for any amendment of the pleadings.1
On

November

pleadings,

15,

arguing

the

County

that

administrative remedies.

moved

Plaintiff

for

judgment

failed

to

on

the

exhaust

Plaintiff responded, on November 29,

by filing a motion for leave to amend her complaint, along with
a consolidated memorandum of law in support of that motion and
opposing Defendant’s motion.

Plaintiff sought leave to amend,

pursuant to Fed.R.Civ.P. 15(a), in order “to add a claim under

1

The schedule was revised several times after the date for
amendment.
The current schedule sets a discovery deadline of
December 21, 2012, and a dispositive motions deadline of January
30, 2013. (ECF No. 52).
2

Title

II

of

the

[Americans

with

Disabilities

Act

(“ADA”)],”

which she asserted “would provide essentially the same remedies
as those sought under the present Complaint.”
2).

(ECF No. 26-1, at

In opposing the motion to amend, the County argued that

because the deadline for amendment of the pleadings had passed,
Plaintiff was required to show good cause for modification of
the schedule, pursuant to Fed.R.Civ.P. 16(b), and that she had
failed to do so.

In her reply papers, Plaintiff maintained that

there was good cause for modification of the schedule because,
in

its

discovery

responses,

the

County

“denied

that

the

[consolidated call] [c]enter received federal funding for the
past five years . . . [and] the possibility that [it] may not
[receive federal funding] could complicate Plaintiff’s requested
relief.”

(ECF No. 35, at 2).

Plaintiff suggested that she did

not learn of this possibility until after the pleading deadline
had passed and that she filed her motion for leave to amend soon
thereafter.
Both motions were denied by an opinion and order issued
January 4, 2012.

(ECF Nos. 36, 37).

Regarding the motion for

leave to amend, the court agreed with the County that Plaintiff
was required to show good cause for modifying the scheduling
order under Rule 16(b).

In rejecting Plaintiff’s argument that

there was good cause, the court reasoned:

3

While it seems unlikely that relief under
the Rehabilitation Act will be precluded
because the . . . call center, as distinct
from the County itself, did not receive
federal funding, the County plainly admitted
in its answer that “it receives federal
funding, but denie[d] that any federal
funding was received in connection with the
implementation of the [call] [c]enter.”
(ECF No. 10 ¶ 5).
Thus, the County’s
assertion to the same effect in its answers
to interrogatories should have come as no
surprise to Plaintiff, and this “event” does
not constitute good cause for modification
of the schedule.
(ECF No. 36, at 13-14).
On January 18, 2012, Plaintiff moved for reconsideration.
(ECF No. 45).

In that motion, she expressed concern that the

County had not yet supplemented an answer to interrogatory with
regard to whether the HHS department receives federal funding,
contending that if a supplemental answer were to reveal that it
does not, relief under the Rehabilitation Act may be foreclosed.
In response, the County “clarif[ied] th[e] ambiguity” cited by
Plaintiff,

“admit[ting]

that

federal funding every year.”

HHS

has

received

(ECF No. 46 ¶ 5).

significant
In reply,

Plaintiff argued that the supplemental discovery response she
received was not fully responsive to her query insofar as she
had not received requested “documents reflecting ‘all federal
financial assistance received by defendant.’”
n. 2).

4

(ECF No. 47, at 2

By a memorandum and order issued February 27, the court
denied Plaintiff’s motion for reconsideration.

(ECF No. 48).

It reasoned that the issue raised by Plaintiff could have been
raised in its initial motion for leave to amend, but was not,
and that, in any event, her “concerns have apparently not come
to

bear,”

citing

the

County’s

acknowledgement

department’s receipt of federal funding.

of

the

HHS

(ECF No. 48, at 8).

On July 24, 2012, Plaintiff filed the pending motion for
leave to file an amended or supplemental complaint.
53).

(ECF No.

Plaintiff now asserts that, on or about May 4, 2012, she

submitted

an

consolidated

application
call

center

for
and

an
was

open

position

subsequently

interview, but was not selected for the job.

in

granted

the
an

She alleges that

she was “discriminated against in the conduct of the interview
because she, unlike other applicants, was not provided with a
written copy of the questions she would be asked in a format
accessible

to

her.”

(ECF

No.

53-2

¶

31).

According

to

Plaintiff, the County “has an illegal per se ban on hiring blind
individuals for work in the call center.”

(ECF No. 53-1, at 5).

Based on this new event, she seeks to revise her complaint to
add a failure to hire claim under Title II of the ADA.
The County has opposed Plaintiff’s motion (ECF No. 54), and
Plaintiff has filed papers in reply (ECF No. 55).

5

II.

Standard of Review
While Plaintiff presents her motion as one to amend or to

supplement her complaint, it may only be considered as a motion
to supplement.

“An amended complaint filed pursuant to Federal

Rule of Civil Procedure 15(a) typically relates to matters that
have taken place prior to the date of the pleading that is being
amended,” while a “supplemental complaint typically allows the
pleader to ‘set[] forth transactions or occurrences or events
which have happened since the date of the pleading sought to be
supplemented.’”

Connectu LLC v. Zuckerberg, 522 F.3d 82, 90 (1st

Cir. 2008) (quoting Fed.R.Civ.P. 15(d)).

Plaintiff seeks to

“add[] to [the complaint] allegations about [a] second act of
discrimination,” which allegedly occurred over a year after the
suit was originally commenced.

(ECF No. 55, at 2).

Thus, her

motion is construed as one for leave to file a supplemental
complaint.
Motions to supplement are governed by Fed.R.Civ.P. 15(d),
which provides:
On motion and reasonable notice, the court
may, on just terms, permit a party to serve
a supplemental pleading setting out any
transaction,
occurrence,
or
event
that
happened after the date of the pleading to
be supplemented.
The court may permit
supplementation even though the original
pleading is defective in stating a claim or
defense.
The court may order that the
opposing party plead to the supplemental
pleading within a specified time.
6

Despite

the

distinction

between

amended

and

supplemental

pleadings, “the standards used by a district court in ruling on
a

motion

to

amend

on

a

motion

to

supplement

are

nearly

Franks v. Ross, 313 F.3d 184, 198 n. 15 (4th Cir.

identical.”
2002).

or

“In either situation, leave should be freely granted,

and should be denied only where ‘good reason exists . . . , such
as prejudice to the defendants.’”

Id. (quoting Walker v. United

Parcel Serv., 240 F.3d 1268, 1278 (10th Cir. 2002)).
III. Analysis
The County contends that Plaintiff’s new claim is simply an
attempted

end-run

around

the

heightened

requirements

of

Rule

16(b) and the court’s prior rulings denying her leave to amend.
It maintains that the motion should be considered under the good
cause standard of Rule 16(b) and denied due to Plaintiff’s lack
of

diligence

in

filing

a

timely

motion

for

leave

to

amend.

Defendant further argues that the motion should be denied under
Rule

15(d)

require

additional

depositions, written discovery and legal analysis.”

(ECF No.

54,

place

at

because

7).

“[t]he

According

to

new

claim

the

will

County,

this

“would

an

onerous burden on Defendant and interfere with the timing of the
current Scheduling Order.”

(Id. at 8).

Despite the County’s argument to the contrary, Rule 16(b)
does

not

apply

in

this

context.

7

That

rule

provides,

in

subsection (4), that “[a] schedule may be modified only for good
cause and with the judge’s consent.”
noted,

the

schedule

in

this

Fed.R.Civ.P. 16(b)(4).

case

set

an

deadline for amendment of the pleadings.

October

17,

As

2011,

Plaintiff’s motion,

however, is not one to amend, but to supplement her complaint
based on events that have transpired since the time the original
was

filed.

As

the

County

itself

observes,

this

claim

“is

founded on a new legal theory (violation of Title II of the ADA)
and a new set of facts that are separate and distinct from
Plaintiff’s

present

claim

of

discriminatory

selection

implementation of software under the Rehabilitation Act.”
No. 54, at 7-8).

and
(ECF

“Rule 16 does not require courts to set a

deadline for supplemental pleadings and the [c]ourt did not set
such a deadline” in this case; thus, that rule “is inapplicable
in this matter and Plaintiff[] need not demonstrate good cause
in

order

to

supplement

[her]

[c]omplaint.”

Ohio

Valley

Environmental Coalition v. U.S. Army Corps of Engineers, 243
F.R.D. 253, 256 (S.D.W.Va. 2007).
The
result

County’s

due

to

unpersuasive.

argument

delay
While

in

that

the

significant

completion

additional

of

discovery

prejudice

discovery
will

is

will
also

certainly

be

necessary, the substance of Plaintiff’s ADA claim is similar to
the

Rehabilitation

Act

discovery to this point.

claim

that

has

been

the

subject

of

See Paulone v. City of Frederick, 787
8

F.Supp.2d 360, 369 (D.Md. 2011) (“the statutes ‘share the same
definitions of disability,’ id. at 433, and Title II of the ADA
explicitly

provides

that

‘[t]he

remedies,

procedures,

and

rights’ provided under § 504 of the Rehabilitation Act ‘shall be
the remedies, procedures, and rights [that Title II of the ADA]
provides to any person alleging discrimination on the basis of
disability.

.

.

.’

42

U.S.C.

§

12133.”).

Thus,

there

is

substantial overlap between the claims such that much of the
discovery that has already been completed will apply to both.
Moreover, if the court were to deny the motion, there would be
nothing to prevent Plaintiff from simply filing a new complaint
raising the ADA claim based on new events.

If that were to

occur, the new complaint would likely be consolidated with the
instant case, a process that would almost certainly result in
even

more

delay

and

expense.

See

Franks,

313

F.3d

at

198

(“‘requiring [a] plaintiff to go through the needless formality
and expense of instituting a new action when events occurring
after the original filing indicated he had a right to relief
[is] inconsistent with the philosophy of the federal rules’”
(quoting 6A Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1505 (2d. ed. 1990)).
Permitting Plaintiff to add an ADA claim will also help to
ensure that the case is ultimately adjudicated on its merits.
Apparently, a focus of discovery has been on the receipt of
9

federal

funding

by

the

relevant

County

with the consolidated call center.

department

associated

A key distinction between

the Rehabilitation Act and Title II of the ADA is that the
Rehabilitation Act applies to “any program or activity receiving
Federal financial assistance.”
“program

or

operations

activity”

of

.

.

.

is
a

29 U.S.C. § 794(a).

defined

as

department,

including
agency,

“all

special

The term
of

the

purpose

district, or other instrumentality of a State or of a local
government[.]”

29 U.S.C. § 794(b)(1)(A).

While the Act is

remedial in nature and its scope is quite broad, at least one
appellate court has found that “state or local governments may
not automatically incur liability for the discriminatory actions
of subordinate actors or agencies under the Rehabilitation Act”
and

required

a

showing

of

“a

sufficient

nexus”

federal funds and the discriminating entity.

between

the

See LaPier v.

Prince George’s County, Md., 2011 WL 4501372, at *3 n. 1 (D.Md.
Sept. 27, 2011) (citing Schroeder v. City of Chicago, 927 F.2d
957, 962 (7th Cir. 1991)).
Here, the County has consistently denied that the Office of
Public Information, the department that manages the consolidated
call center, or the consolidated call center itself received any
federal funding.

To the extent that it might argue on summary

judgment that it cannot be liable under the Rehabilitation Act
because there is an insufficient nexus between the call center
10

and federal funding, permitting Plaintiff to add a claim under
the ADA, which is not contingent upon the receipt of federal
money, will advance the Fourth Circuit’s “longstanding policy in
favor of merits-based adjudication.”

Colleton Prep. Acad., Inc.

v. Hoover Universal, Inc., 616 F.3d 413, 417 n. 3 (4th Cir.
2010).
IV.

Conclusion
For the foregoing reasons, Plaintiff’s motion for leave to

file a supplemental complaint will be granted.

A separate order

will follow.

________/s/_________________
DEBORAH K. CHASANOW
United States District Judge

11