Civil Action No. DKC 2007-0714


Presently pending and ready for resolution are Defendants’ motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) (paper 14), Plaintiff’s motion for leave to file surreply (paper 27), and Plaintiff’s motion for leave to file a second amended complaint (paper 44). The issues have been fully briefed and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the reasons that follow, the court will grant in part and deny in part Defendants’ motion to dismiss, deny Plaintiff’s motion for leave to file surreply, and grant Plaintiff’s motion for leave to file a second amended complaint.

I. Background

Plaintiff, Austine Fink, has been an art teacher in Charles County, Maryland since 1996. From 1996 to 2006, she taught art and computer technology to students at John Hanson Middle School and Mary H. Matula Elementary School. In March 2006, Plaintiff was diagnosed with Barrett’s Esophagus with High Grade Dysplasia, an indicator of esophageal cancer. To treat the cancer, doctors removed Plaintiff’s esophagus in the summer of 2006. As a result of the surgery, Plaintiff is required to eat small meals on a regular basis and use the restroom with increased frequency. She is also susceptible to vomiting and regurgitates when she bends over.

Plaintiff’s recovery period lasted from August until December 2006. During her recovery period, Plaintiff took a leave of absence from her teaching position. In July or August 2006, Plaintiff’s husband, Roger Fink, spoke to Defendant Keith A. Hettel, the  Assistant Superintendent for Human Resources for the Charles County School Board, regarding Plaintiff’s absence. Mr. Fink informed Mr. Hettel of the expected duration of Plaintiff’s absence and that Plaintiff would use personal, sick, Family Medical Leave Act, and donated leave. A Charles County Teacher’s Association representative requested leave on behalf of Plaintiff and Defendants granted the leave request.

On October 24, 2006, Plaintiff met with Mr. Hettel to request that the Board transfer her to a high school art teacher, administrative, or supervisory position. She explained that her surgery affected her ability to interact with small children, as she can no longer bend over to talk to them and she would frequently have to leave the classroom for bathroom breaks.

Plaintiff also informed Mr. Hettel that her physician would likely approve her return to work by mid-November. Mr. Hettel represented to Plaintiff that he would identify potential positions for her.

On or about November 27, 2006, the Board published an art teacher vacancy for McDonough High School in the “School News” publication. On or about November 29, Plaintiff asked Mr. Hettel to make the McDonough position available to her. Mr. Hettel responded that he would investigate whether the McDonough position was available, but that the Board might also have a  part-time gifted and talented elementary classroom teaching position.

Plaintiff followed up with Mr. Hettel on December 1 regarding the McDonough position and other available teaching positions. She also volunteered her physician’s written authorization stating that she may return to work.1 Mr. Hettel did not respond.

Mr. Fink e-mailed Defendant James E. Richmond, Charles County Superintendent for Schools, to confirm that Plaintiff  intended to return to work, she required an accommodation, and she had previously made her accommodation requests to Mr. Hettel. On December 7, Plaintiff delivered a letter from her physician stating that her condition prevented her from teaching at the elementary and middle school grade levels, but that she may return to work at the high school level. The same day, Mr. Hettel informed Plaintiff that the Board had filled the McDonough position. Several weeks later, the Board officially hired a recent college graduate for the position.

On January 8, 2007, the Board filled an art teacher vacancy at Thomas Stone High School. The Board did not announce the vacancy prior to filling it.

Mr. Hettel informed Plaintiff on December 18 that she should report to La Plata High School, where she would serve as a fulltime high school art teacher. When Plaintiff arrived at La Plata on January 2, 2007, she learned that she would not be an art teacher, but rather a substitute teacher. Her responsibilities included working at Matula, her former elementary school, and mentoring Mr. Hettel’s son. Shortly thereafter, on January 8, the Board instructed Plaintiff to report to North Point High School as an art teacher on an as-needed basis. She began work as a substitute teacher, not an art teacher. While Plaintiff worked at North Point, the Board did not pay her commensurate with her increased hours, nor did it provide her with lesson planning time.

During the spring semester, the Board assigned Plaintiff to supervise the “In School Retention” (“ISR”) class. Her ISR duties involved monitoring students with discipline problems who have been suspended from attending their regular classes. The ISR classroom is a converted storage closet that can hold up to nine students. During her ISR assignments, Plaintiff was not permitted to take breaks, including bathroom breaks, or to leave the classroom during the school day without taking the students with her. She had no lesson planning time. During one of Plaintiff’s ISR assignments, the students were present for only ninety minutes of the school day. The Board required Plaintiff to remain alone in the classroom for the remainder of the day.

Other substitute teaching assignments included covering classes with middle school students. Another assignment was to sit in the library for half of a day without any duties. The Board did not pay Plaintiff for her first two weeks of work in January 2007. The Board claimed that it believed it had overpaid Plaintiff in 2006 for 119 hours of sick leave and therefore she had to work without pay until February 2.

On March 20, 2007, Plaintiff filed her complaint against the Charles County Board of Education, James E. Richmond, Superintendent, and Keith A. Hettel, Assistant Superintendent for Human Resources, alleging violations of the Rehabilitation Act of 1973, 29 U.S.C. ¤ 794, Title I and II of the Americans with Disabilities Act, 29 U.S.C. ¤¤ 12112, 12131, 42 U.S.C. ¤ 1983, and the Maryland Wage Collection and Payment Act, MD. CODE ANN., LAB. & EMPL., ¤ 3-501, et seq. (West 2007). (Paper 1). On March 27, 2007, Plaintiff filed a Charge of Discrimination with the United States  Equal Employment Opportunity Commission against Defendants for violations of Title I of the ADA. The EEOC issued Plaintiff a Notice of Right to Sue on May 1, 2007 and closed the case. On May 4, 2007, Plaintiff filed her Amended Complaint. (Paper 10). The following facts are related from Plaintiff’s proposed second amended complaint. (Paper 44-4). During the summer of 2007, Defendants offered Plaintiff a full-time position as an art teacher at North Point High School. They offered Plaintiff various accommodations, but did not offer her a fixed classroom for her classes. She would have to “float” between other teachers’ classrooms for each class period. Plaintiff’s doctor issued a written opinion that Defendants’ proposed accommodations were inadequate unless they provided a fixed classroom. On August 2, Plaintiff sought a preliminary injunction to compel Defendants to provide Plaintiff with a fixed classroom. The court held a hearing on August 13 and denied the motion from the bench, finding that Defendants’ proposed accommodations for Plaintiff were reasonable.

On August 16, 2007, Defendants placed Plaintiff on a paid leave of absence pending the outcome of a medical examination by a Board designated physician to determine Plaintiff’s fitness to return to work. On August 24, Plaintiff consented to the medical examination and accepted the accommodations offered by Defendants at the August 14 preliminary injunction hearing. Plaintiff underwent her fitness for duty medical examination on September 26, 2007.

On October 11, Defendants informed Plaintiff that they would be returning her to work on October 15. They indicated that they would not be providing Plaintiff with a wheelchair or permanent aide to assist Plaintiff’s travel between classrooms. On October 12, Plaintiff sought clarification on whether Defendants would be providing the wheelchair and aide. Defendants stated that they would not be providing a wheelchair and would only provide an aide as needed. The same day, Plaintiff filed a renewed motion for preliminary injunction seeking the court to compel Defendants to provide the wheelchair and permanent aide.

Because of Defendants’ failure to provide the wheelchair and permanent aide, Plaintiff did not return to work on October 15. The same day, Defendants mailed Plaintiff a letter indicating that they had removed her from paid medical leave. The letter stated that Defendants would charge Plaintiff sick and personal leave for each day she failed to return to work and would treat her  absences as leave without pay once her paid leave is exhausted. Subsequently, Plaintiff filed the motion for leave to file a second amended complaint (paper 44). II. Motion for Leave to File Second Amended Complaint

Plaintiff seeks leave to file a second amended complaint in which she alleges acts of retaliation after the filing of the First Amended Complaint on May 4, 2007. The proposed amendments describe the events that occurred since Plaintiff filed her  amended complaint in May 2007, including the new assignment to North Point High School and the disputes over necessary accommodations, and she seeks to amend counts II and IV.2

Rule 15(a) of the Federal Rules of Civil Procedure provides that “a party may amend the party’s pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). Refusal of such leave, without a justifying reason, is not only an abuse of discretion, but is “inconsistent with the spirit of the Federal Rules.” Foman v. Davis, 371 U.S. 178, 182 (1962). Denial of leave to amend should occur “only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would be futile.” Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986). Defendants assert that Plaintiff’s amendments are futile. “Determinations of futility under Rule 15(a) are governed by the standards for motions to dismiss.” Classen Immunotherapies, Inc. v. King Pharms., Inc., 403 F.Supp.2d 451, 459 (D.Md. 2005); see also Perkins v. United States, 55 F.3d 910, 917 (4th Cir. 1995).

Defendants argue that the amendments are futile because they are barred by Plaintiff’s failure to exhaust her administrative remedies. Defendants assert that Plaintiff is not merely asserting additional facts to support her retaliation claims, but is attempting to make a new allegation of employment discrimination which she has not filed with the EEOC. Alleged retaliation arising from the complaint that was filed administratively may be raised for the first time in court. Nealon v. Stone, 958 F.2d 584, 590 (4th Cir. 1992). Given the early stage at which Plaintiff sought leave to amend to assert new retaliation claims, Defendants have not been prejudiced. Of course, at some point, the pleadings must be closed, but that point had not been reached when Plaintiff filed her motion.

The ability of the allegations of retaliation to survive the motion to dismiss is a separate question and will be addressed in the next section.

III. Motion to Dismiss

A. Standard of Review

The purpose of a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) is to test the sufficiency of the plaintiff’s complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). Except in certain specified cases, a plaintiff’s complaint need only satisfy the “simplified pleading standard” of Rule 8(a), Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002), which requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).

Nevertheless, “Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief.” Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 n.3 (2007). That showing must consist of at least “enough facts to state a claim to relief that is plausible on its face.” Id. at 1974. In its determination, the court must consider all well-pled allegations in a complaint as true, Albright v. Oliver, 510 U.S. 266, 268 (1994), and must construe all factual allegations in the light most favorable to the plaintiff. See Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). The court must disregard the contrary allegations of the opposing party. See A.S. Abell Co. v. Chell, 412 F.2d 712, 715 (4th Cir. 1969). The court need not, however, accept unsupported legal allegations, Revene v. Charles County Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched as factual allegations, Papasan v. Allain, 478 U.S. 265, 286 (1986), or conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979). In sum, “[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 127 S.Ct. at 1965 (internal citations omitted).

B. Sovereign Immunity

Defendants assert that they are immune to suit for monetary damages for violations of Title II of the ADA and ¤ 504 of the Rehabilitation Act. Plaintiff argues that Congress abrogated Defendants’ sovereign immunity, or alternatively, if the court finds that Defendants are immune, that Defendants waived their immunity by accepting federal funds.

The Eleventh Amendment provides that “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.” U.S. CONST. AMEND. XI. The Supreme Court has held that the Eleventh Amendment protects “state agents and state instrumentalities” as well as the States themselves. Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997). The parties agree that Defendants are arms of the state and qualify for Eleventh Amendment immunity if that immunity has not been waived or abrogated. E.g., Biggs v. Bd. of Educ. of Cecil County, 229 F.Supp.2d 437, 444 (D.Md. 2002).

1. Rehabilitation Act

The RA contains a waiver provision providing, in part, that “[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 of 1973.” 42 U.S.C. ¤ 2000d-7. The Fourth Circuit has determined that the waiver condition in the RA is valid. Constantine v. Rectors and Visitors of George Mason Univ., 411 F.3d 474, 490-91 (4th Cir. 2005); Lewis v. Bd. of Educ. of Kent County, No. JFM-07-955, 2007 WL 2343659, at *1 (D.Md. Aug. 14, 2007). Accordingly, any state program or activity that receives federal funding must not discriminate on the basis of disability. Constantine, 411 F.3d at 491.

Plaintiff alleges that because the Board receives federal funds, it has waived its Eleventh Amendment immunity. Defendants counter that Constantine does not control the present case because Constantine dealt with a public university, not a public county

board of education governing grades K-12. Defendants argue that a public school system’s waiver premised on the acceptance of federal funds is ineffective because it is coerced. Defendants posit that they are required to provide a free education to all students. Universities, by contrast, may choose, before accepting federal funds, whether to provide educational services to disabled students. Further, Defendants are subject to state-imposed budgetary guidelines, including a statute establishing the minimum amount a board is required to request. Defendants also note that the State Board of Education, not the county board, has the authority to accept federal funds.

The Lewis court rejected a very similar argument that a county school board’s waiver was the product of federal coercion. See 2007 WL 2343659, at *1. In upholding the waiver, the court noted, “the pertinent question is whether Congress has coerced a state to accept federal funds, Constantine, 411 F.3d at 493, not whether the state requires its own agencies to accept federal funds.” Id. at

*1 n.1. This reasoning is entirely persuasive, as Defendants have not presented evidence that Congress’s financial inducement to Maryland amounts to coercion. Defendants should note that they are only potentially entitled to the doctrine of sovereign  immunity because the Board is considered a State agency. That is, the Board shares the state of Maryland’s sovereign immunity. If the Board were considered independent, it would not enjoy sovereign immunity at all. Thus, it is not unfair to measure waiver of that immunity based on the action of the state of Maryland in accepting federal funds, and passing that waiver on to Defendants. Thus, Defendants’ position is disingenuous, at best. First, they claims the Eleventh Amendment sovereign immunity due to the state of Maryland by virtue of the Board’s status under Maryland law and then second, assert that they (as opposed to the state of Maryland itself) cannot be held to have waived that immunity by accepting federal funds because the State coerced the Board to do so. The County Board cannot have it both ways. Either it is not entitled to sovereign immunity in the first place, or, if it is so entitled, it must take the entirety of the state of Maryland’s position, and be held to have waived that protection. The restrictions that Maryland includes in its entities’ budgets are irrelevant to the federal coercion analysis. Therefore, Plaintiff’s claims under Count I for violations of the Rehabilitation Act of 1973 will not be dismissed.3

2. Title II of the ADA

Congress may abrogate States’ immunity “only by stating unequivocally its desire to do so and only pursuant to a valid exercise of constitutional authority.” Constantine, 411 F.3d at 484 (citing Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55 (1996)). There is no question that Congress unequivocally stated its desire to abrogate immunity in Title II by providing that “[a] State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter.” 42 U.S.C. ¤ 12202. See Tennessee v. Lane, 541 U.S. 509, 518 (2004); Board of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363-64 (2001).

Congress has the power to give effect to its intent only if the enactment of Title II was a valid exercise of authority under ¤ 5 of the Fourteenth Amendment. Lane, 541 U.S. at 518. Section 5 “authorizes Congress to enact ‘appropriate legislation’ to enforce” the substantive guarantees of the Fourteenth Amendment. Constantine, 411 F.3d at 484. Congress is empowered to “enact prophylactic legislation prohibiting conduct that is ‘not itself unconstitutional,'” but it may not substantively redefine Fourteenth Amendment protections. Id. (quoting City of Boerne v. Flores, 521 U.S. 507, 518 (1997)). In Flores, the Supreme Court of the United States announced that for ¤ 5 legislation, “[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” 521 U.S. at 520. To determine whether Congress has exceeded its ¤ 5 authority, courts apply a three-part test: (1) “identify the constitutional right or rights that Congress sought to enforce when it enacted Title II,” Lane, 541 U.S. at 522; (2) determine “whether Congress enacted Title II in response to a pattern of unconstitutional disability discrimination,” Constantine, 411 F.3d at 485; and (3) whether the rights and remedies created by Title II are “congruent and proportional to the constitutional rights it purports to enforce and the record of constitutional violations adduced by Congress.” Lane, 541 U.S. at 548.

The Supreme Court has addressed abrogation of sovereign immunity in the context of Title I and Title II. In Board of Trustees of the University of Alabama v. Garrett, the Court found that Congress exceeded its ¤ 5 authority by abrogating sovereign immunity in Title I. 531 U.S. at 368. The Court found that Congress failed to document a history and pattern of the states’ irrational employment discrimination practices against the disabled. Id. Three years later, the Court addressed sovereign immunity in Title II. In Tennessee v. Lane, the Court upheld Congress’s abrogation of sovereign immunity in Title II as it applied to the fundamental right of access to judicial services. 541 U.S. at 523.

In United States v. Georgia, 546 U.S. 151 (2006), the Supreme Court provided additional guidance to courts addressing  sovereign immunity in Title II. The Court held that “insofar as Title II creates a private cause of action for damages against States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity.” Id. Yet the Court did not foreclose the possibility that Congress properly exercised its ¤ 5 powers by abrogating immunity as to misconduct that does not violate the Fourteenth Amendment. The Court counseled that courts examining Title II challenges alleging conduct that is not unconstitutional should determine “whether Congress’s purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid.” Id. To determine whether Congress has properly abrogated Eleventh Amendment immunity in Title II, the court applies a three-step test: (1) identify which aspects of the State’s alleged conduct violate Title II; (2) identify to what extent the misconduct also violates the Fourteenth Amendment; and (3) insofar as the alleged misconduct violates Title II but not the Fourteenth Amendment, determine whether Congress’s abrogation of sovereign immunity is nevertheless valid. Id.; Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 553 (3d Cir. 2007); Toledo v. Sanchez, 454 F.3d 24, 31 (1st Cir. 2006); Klinger v. Dir., Dep’t of Revenue, State of Mo., 455 F.3d 888, 893-94 (8th Cir. 2006); Chase v. Baskerville, 508 F.Supp.2d 492, 499 (E.D.Va. 2007); Goonewardena v. New York, 475 F.Supp.2d 310, 323 (S.D.N.Y. 2007). Plaintiff asserts that (1) a public school employee has a constitutionally protected fundamental right and interest in her employment, citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985) or (2) the Fourth Circuit has already determined that Title II of the ADA encompasses public employment discrimination, citing Doe v. Univ. of MD. Med. Sys. Corp., 50 F.3d 1261, 1264-65 (4th Cir. 1995).4 Whether the ADA encompasses public employment discrimination is not the issue. Rather, the question is whether the right sought to be vindicated is so fundamental as to be equivalent to one protected by the Fourteenth Amendment. Doe did not answer that question. Furthermore, as pointed out by Defendants, Plaintiff did not lose her job, calling into question whether she can rely on any fundamental right to employment.

The question of whether the interest in public employment is of constitutional magnitude appears to be somewhat unresolved:

Garrett, Lane, and Constantine provide the framework for analyzing the sovereign immunity question presented in this case, but specific guidance from the Supreme Court or the Fourth Circuit is presently absent where the plaintiff asserts an employment, or quasi-employment, claim under Title II of the ADA rather than Title I.6 Although the LaneCourt found a pattern of state discrimination against the disabled that was “clear beyond peradventure” in the provision of public services, the Garrett Court found only minimal evidence of unconstitutional state discrimination in employment.

In this case, Dr. Der Sarkissian alleges that he was unlawfully discharged from his medical residency position at WVU-a position that hasboth academic and employment characteristics. At least one court, relying on Garrett, has held that Congress did not validly abrogate sovereign immunity with regard to state employment discrimination actions brought under Title II. Clifton v. Georgia Merit Sys., 2007 WL 734186 (N.D.Ga. Mar. 6, 2007)(“a plaintiff should not be permitted to circumvent the holding of Garrett immunizing states from employment discrimination claims brought pursuant to Title I of the ADA by commencing suit under Title II . . .”).

Nonetheless, because this Court concludes that a medical residency is more akin to a program of higher education than an employment position, [footnote omitted] the Fourth Circuit’s decision in Constantine controls. The court in Constantine held that, as applied to higher education, the remedial measures contained in Title II represent a congruent and proportional response to the history and pattern of unconstitutional disability discrimination in public services that was identified in Lane. See Constantine, 411 F.3d at 490. After Constantine, it is settled that, at least in this circuit, States do not have immunity from claims pursuant to Title II of the ADA, as it applies to the provision of public higher education. Therefore, Constantine controls the Eleventh Amendment inquiry on Count II, the failure to accommodate claim. Because Congress has validly abrogated immunity under Title II of the ADA as it applies to public higher education, WVU and Dr. Nuss in her official capacity are not immune from suit for money damages on this Count. Accordingly, Count II of the amended complaint will not be dismissed as to WVU and Dr. Nuss in her official capacity.Sarkissian v. West Virginia Univ. Bd. of Governors, No. 1:05CV144, 2007 WL 1308978, at *7-8 (N.D.W.Va. May 3, 2007).

Although it is unlikely that Plaintiff has stated a viable Fourteenth Amendment claim, either to employment generally or to specific aspects of her teaching role, as discussed more fully in connection with the ¤ 1983 claims, given the uncertainty on the issue and the fact that the case will proceed under the RA in any event, final determination whether a valid ADA Title II claim exists need not be made now. In any event, Plaintiff may seek prospective injunctive relief from Defendants Hettel and Richmond under the ADA, even if sovereign immunity bars the damage action. C. Retaliation: Counts II and IV

Despite the ambiguity of the complaint, it appears that Plaintiff seeks to allege that she suffered two rounds of retaliation from Defendants: once after she first requested an accommodation and again after she was refused an accommodation. Plaintiff alleges retaliation claims under both the Rehabilitation Act and the ADA. Defendants urge the court to dismiss the claims on the basis that the claims are barred by sovereign immunity, or alternatively, that Plaintiff has failed to state a prima facie case. The sovereign immunity analysis for retaliation follows the analysis performed supra under the Rehabilitation Act and ADA. The retaliation analysis is the same for the ADA and the Rehabilitation Act. Hoyt v. St.Mary’s Rehab. Ctr., 711 F.2d 864, 867 (8th Cir. 1983); Bane v. Virginia Dep’t of Corr., No. 7:06CV00733, 2007 WL 1378523, at *9-10 (W.D.Va. May 8, 2007). Title V of the ADA governs claims for retaliation. Title V states in pertinent part: “[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.” 42 U.S.C. ¤ 12203(a); see also 29 U.S.C. ¤ 794a(a)(2); 45 C.F.R. ¤ 80.7(e). Under both the ADA and the Rehabilitation Act, the elements of a prima facie case for retaliation are: (1) that Plaintiff engaged in protected activity; (2) that her employer took an adverse action against her; and (3) that a causal connection existed between the adverse activity and the protected action. Haulbrook v. Michelin North America, 252 F.3d 696, 706 (4th Cir. 2001); Bane, 2007 WL 1378523, at *9-10. Of course, at the motion to dismiss stage, a plaintiff must plead adequately, but she is not required to proffer evidence.

A request for a reasonable accommodation is a protected activity under both the ADA and the Rehabilitation Act. Haulbrook, 252 F.3d at 706 n.3; Bivins v. Gonzales, No. CIV. CCB-05-0833, 2005 WL 2864746, at *4 (D.Md. Oct. 26, 2005). Similarly, declining to return to work after being refused a reasonable accommodation is a protected activity. See Peters v. Jenney, 327 F.3d 307, 320-21 (4th Cir. 2003).

The parties dispute whether Plaintiff has sufficiently alleged that Defendants took an adverse action against her. In determining whether the alleged retaliatory action is materially adverse as required for the second element, the court should ask whether it was harmful enough to have “dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington Northern & Santa Fe Ry. Co. v. White, 126 S.Ct. 2405, 2409 (2006). Prior to Burlington Northern, the adverse action inquiry was tied to whether the employment action affected the terms, conditions, or benefits of employment. Although no longer determinative, the effect of an employment action on terms, benefits, and conditions of employment is still a relevant factor in weighing an action’s material adverseness. Even under the relaxed standard announced in Burlington Northern, Plaintiff is still required to demonstrate that the retaliatory conduct caused actual harm or injury. Id. at 2414; Moret v. Geren, 494 F.Supp.2d 329, 344 (D.Md. 2007). Plaintiff alleges that after she requested an assignment to a full-time position teaching high school art courses, Defendants assigned her to a substitute-only position and refused to consider her for a full-time high school position. Specifically, she contends that Defendants assigned her to supervise students in ISR in a converted storage closet where she could not take bathroom breaks without bringing the students with her, and without planning time; assigned her to teach middle school students as a substitute, sometimes without breaks and without planning time; and on one occasion assigned her to sit with no duties in the library for half of a school day. As a result of these actions, Plaintiff claims to have suffered the negative consequences of withheld back pay, reduced present pay, and risks to her health. Defendants contend that Plaintiff’s allegations amount to mere inconveniences, not adverse employment actions.

The Supreme Court recently held that reassignment of job duties could qualify as an adverse employment action, depending on the circumstances of the particular case. Burlington Northern, 126 S.Ct. at 2417 (noting that the EEOC has found “[r]etaliatory work assignments’ to be a classic and ‘widely recognized’ example of ‘forbidden retaliation.'”); Toulan v. DAP Prods. Inc., Civ. No. CCB-05-2254, 2007 WL 172522, at *9 (D.Md. Jan. 17, 2007). Whether the reassignment of duties is an adverse employment action “should be judged from the perspective of a reasonable person in the plaintiff’s position, considering ‘all the circumstances.’ Oncale [v. Sundowner Offshore Servs. Inc.], 523 U.S. [75], 81, 118 S.Ct. 998.” Burlington Northern, 126 S.Ct. at 2417. A reasonable teacher would not likely find it materially adverse to be reassigned as a substitute. The temporary assignment to ISR and the half day spent in the library might have been boring or inconvenient, but those assignments do not amount to materially adverse employment actions. See Spriggs v. Pub. Serv. Comm’n of Md., 197 F.Supp.2d 388, 393 (D.Md. 2002) (refusing to find a materially adverse employment action where the plaintiff’s new duties resulted in merely “displeasure and inconvenience”).

Failure to hire can be an adverse employment action. See, e.g., Price v. Thompson, 380 F.3d 209, 212 (4th Cir. 2004). In the context of a plaintiff seeking to switch to a lateral position under the same employer, a failure to hire could be adverse where the plaintiff’s terms, conditions, or benefits of employment are affected. See Albero v. City of Salisbury, 422 F.Supp.2d 549, 560-61 (D.Md. 2006) (finding no adverse employment action whereplaintiff was not hired for alternative position, but the terms of her employment were not adversely affected). Here, at the pleading stage, Plaintiff has articulated sufficient adverse consequences. The other alleged retaliatory conduct also satisfies the prima facie standard. Plaintiff’s allegations that Defendants withheld her back pay and failed to pay her commensurate with her increased hours qualify as adverse employment actions, as a loss of pay is certainly a legally cognizable injury.

In her second amended complaint, Plaintiff contends that Defendants took additional adverse employment action against her when, in reaction to her refusal to return to work without the promised wheelchair and permanent aide, they removed her from paid leave and informed her that she would be charged personal and sick leave for each day she failed to report to work. Further, they would treat her absences as leave without pay once her sick leave and personal leave were exhausted. Defendants’ placement of Plaintiff on leave of absence under these conditions certainly affects the terms and benefits of Plaintiff’s employment, as she will no longer receive pay once she uses all of her paid leave. Accordingly, Plaintiff has sufficiently alleged that Defendants took an adverse employment action against her. See Allen, 273 F.Supp.2d at 705-06 (finding that a 10-day unpaid suspension was an adverse action); Parkinson v. Anne Arundel Med. Ctr., Inc., 214 F.Supp.2d 511, 518 (D.Md. 2002) (noting that one-day, unpaid suspension could qualify as an adverse employment action). The third element of her prima facie case of retaliation, that the adverse employment actions were causally connected to the protected activity, also is alleged adequately. Regarding Plaintiff’s back pay claims, the only allegations of causation that may be inferred from Plaintiff’s complaint relate to the temporal proximity of the adverse actions and the protected activity. Temporal proximity is relevant to a determination of causation and in some cases may be sufficient alone to satisfy the causation inquiry. Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (noting that temporal proximity must be “very close” to be sufficient evidence of causation). Plaintiff requested her accommodation on October 24, 2006. In mid-January 2007, Defendants informed her that two weeks of pay would be withheld. She began at North Point High School on January 8, 2007, the first date she would have been paid at the lower rate than she allegedly deserved. The lapse of less than two months is sufficient evidence of causation to satisfy the third prong of the prima facie case. See Allen, 273 F.Supp.2d at 708 (finding that four months provided a sufficient inference of causation).

Plaintiff has also sufficiently alleged a causal connection between her refusal to return to work without the promised accommodations and Defendants’ placing her on unpaid leave. Here, Defendants took action the same day that Plaintiff refused to return to work. (Paper 44 ¦¦ 56, 57). This very close proximity raises a strong inference of causation. Accordingly, the court finds that Plaintiff has sufficiently alleged her retaliation claims and Defendants’ motion to dismiss Counts II and IV will be denied. Further, as the allegations in Plaintiff’s proposed second amended complaint sufficiently state a retaliation claim, Plaintiff’s motion for leave to file second amended complaint will be granted.

D. Title I of the ADA: Count V

Defendants have moved to dismiss Count V, pursuant to Fed.R.Civ.P. 12(b)(1). Defendants argue that the court lacks subject matter jurisdiction over Plaintiff’s Title I claim because Plaintiff failed to file a complaint with the EEOC prior to filing her original complaint, as required by 42 U.S.C. ¤ 2000e-5. Plaintiff concedes that she filed her EEOC complaint on March 27, 2007, seven days after she filed her original complaint. She contends that the procedural defect is cured, however, because she received a right to sue letter on May 1, 2007, and subsequently filed her amended complaint on May 4, 2007.

The court need not dismiss Count V on the basis of Plaintiff’s failure first to file a claim with the EEOC. As other courts in this district have recognized, the later issuance of a right to sue letter, coupled with the filing of an amended complaint cures any procedural defect. Miller v. Baltimore Gas & Elec. Co., 202 F.R.D. 195, 204 (D.Md. 2001) (citing Henderson v. Eastern Freight Ways, Inc., 460 F.2d 258, 260 (4th Cir. 1972)). Count V of the original complaint was subject to dismissal prior to the filing of the amended complaint, but “the issuance of the ‘suit-letter’ validated the pending action.” Henderson, 460 F.2d at 260.

E. Section 1983 Claims: Counts VI, VII, VIII5

Defendants contend that Plaintiff has failed sufficiently to allege a violation of 42 U.S.C. ¤ 1983 in Counts VI, VII, and VIII. The court agrees.

To state a ¤ 1983 claim, a plaintiff must allege: (1) that she has been deprived of a right, privilege or immunity secured by the Constitution or laws of the United States; and (2) that the conduct complained of was committed by a person acting under the color of state law. There is no question that Plaintiff alleges that Mr. Richmond and Mr. Hettel were acting under color of state law. The difficult issue for Plaintiff is whether she has, or can, allege that she has been deprived of a right, privilege or immunity secured by the Constitution or laws of the United States. A plaintiff may not state a claim under 42 U.S.C. ¤¤ 1983 and 1985(3) for rights created by the ADA. See Alsbrook v. City of Maumelle, 184 F.3d 999, 1012-12 (8th Cir. 1999) (en banc); Holbrook v. City of Alpharetta, Georgia, 112 F.3d 1522, 1531 (11th Cir. 1997). Plaintiff does not seek to do so. Rather, Plaintiff claims that she had a constitutionally protected right and interest in and to her employment, and that the withholding of her pay, and refusal to assign her to a job comparable to the one she had before, as alleged in counts VI and VII, violated her due process rights, and that the assignment to substitute teaching positions without additional pay or planning time, as alleged in count VIII, violated the Equal Protection Clause. Regarding Plaintiff’s alleged denial of wages for the first two weeks of January 2007, she has not specified whether she is asserting a procedural or substantive due process claim, but in either case, she must demonstrate that she had a protected property interest. Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 827 (4th Cir. 1995) (holding that in order to make out a claim for a violation of substantive due process, a plaintiff must show that he possesses a cognizable property interest); Jenkins v. Weatherholtz, 909 F.2d 105, 107 (4th Cir. 1990) (holding that a plaintiff can only state a claim for a violation of procedural due process where plaintiff has a constitutionally protected property interest). It is well established that “[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). Moreover, “[t]he Constitution does not create property interests; rather, such interests ‘are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.'” Start, Inc. v. Baltimore County, Md., 295 F.Supp.2d 569, 584 (D.Md. 2003) (quoting Roth, 408 U.S. at 577).

In her complaint, Plaintiff does not identify the source of entitlement to her unpaid wages. She cites Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985) and Fields v. Durham, 909 F.2d 94, 98 (4th Cir. 1990), to establish that she has a constitutionally protected fundamental right and interest in her employment. (Paper 19, at 10). Those citations are inapposite, however, because they only support the proposition that Plaintiff may have a constitutional right in continued employment. Defendants have not terminated Plaintiff, so Loudermill and Fields do not control the case. Plaintiff must point to some  “independent source” that elevates her ordinary interest in unpaid wages to a level that is constitutionally protected. Plaintiff has failed to do so and therefore the court finds that her due process claim related to the unpaid wages fails to allege a violation of the Fourteenth Amendment.

Plaintiff also alleges that Defendants violated her liberty interest when they filled vacant art teacher positions without first providing her due process of law. When an individual seeks employment, “[i]t is the impairment of the ability to take action that is protected as a liberty interest.” Bannum, Inc. v. Town of Ashland, 922 F.2d 197, 201 (4th Cir. 1990). Bannum continued,[t]hus, when a “person’s good name,reputation, honor, or integrity is at stakebecause of what the government is doing tohim,” a liberty interest is implicated.

Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971). The mere denial of a  business or employment opportunity, without more, does not deprive a person of a liberty interest, for the ability to obtain future business or employment opportunities is not jeopardized. Id. Plaintiff does not allege that Defendants impugned her reputation or imposed a stigma or disability on her “thatforeclosed [her] freedom to take advantage of other employmentopportunities.” Roth, 408 U.S. at 573. Without more, Defendants’decision to hire other applicants for the art teacher positions atMcDonough and Thomas Stone High Schools amounts to “a mere denialof a business or employment opportunity,” and does not rise to thelevel of a constitutional violation. As the Supreme Court noted in Roth, “[i]t stretches the concept too far to suggest that a person is deprived of ‘liberty’ when he simply is not rehired in one job but remains as free as before to seek another.” Id. at 575. Plaintiff’s final Fourteenth Amendment argument also fails. Plaintiff alleges that Defendants violated her equal protection rights by “not affording her planning time at work or providing her additional compensation for her additional teaching time as is afforded or provided to all other teachers at North Point High School.” (Paper 10 ¦¦ 107, 108). “[E]qual protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993). When “governmental action [does] not burden a fundamental right or employ a suspect classification, the pertinent question for determining whether the governmental action violated the Equal Protection Clause is whether the . . . officials reasonably could have believed that the action was rationally related to a legitimate governmental interest.” Front Royal & Warren County Indus. Park Corp. v. Town of Front Royal, 135 F.3d 275, 290 (4th Cir. 1998). The disabled are not a suspect class for purposes of the Fourteenth Amendment, therefore Defendants’ actions are subject to rational basis scrutiny. See Garrett, 531 U.S. at 366. As the Supreme Court held in Beach Communications, “those attacking the rationality of the legislative classification have the burden to ‘negative every conceivable basis which might support it.'” 508 U.S. at 315; MBC Realty, LLC v. Mayor and City Council of Baltimore, 351 F.Supp.2d 420, 424 (D.Md. 2005).

Taking Plaintiff’s allegations as true, the court assumes that Defendants denied Plaintiff planning time and the salary she deserved. The court also assumes that Plaintiff is similarly situated to other teachers at North Point High School. Plaintiff’s equal protection claim fails, however, as she has not alleged any facts to establish that Defendants’ actions were not related to a legitimate governmental purpose. Plaintiff’s only allegations regarding Defendants’ motives are mere “legal conclusions couched as factual allegations” that Defendants denied her planning time and additional pay because she was disabled. Papasan, 478 U.S. at 286. There are many conceivable legitimate reasons for Defendants’ actions, such as budget constraints and scheduling conflicts. With her scant factual allegations, Plaintiff has failed to establish a violation of her Fourteenth Amendment rights. Accordingly, the court will dismiss Plaintiff’s ¤ 1983 claims.

F. Maryland Wage Payment and Collection Law: Count IX

Plaintiff asserts that Defendants failed to pay her in accordance with the Maryland Wage Payment and Collection Law (“MWPCL”), MD. CODE ANN., LAB. AND EMPL. ¤ 3-501, et seq., and made illegal deductions of her pay in violation of ¤ 3-501. Defendants counter that ¤ 3-501 does not apply to public school board employers. Defendants cite two sections of the Education Article that provide “[t]his subtitle does not make the State labor laws in Title 3 and 7 of the Labor and Employment Article apply to public school employment.” MD. CODE ANN., EDUC. ¤ 6-411(b) (“Relationship to other laws”), ¤ 6-514 (“Certain laws inapplicable”). Section 6-411 is within Subtitle 4, “Organizations of Certificated Employees” of Title 6, “Teachers and Other Personnel” of the Education Article. Subtitle 4 governs the membership, designation, representation and negotiation with organizations of certificated employees of public school systems. Section 6-514 is in Title 6, Subtitle 5, “Organizations of Noncertificated employees,” which governs similar issues as Subtitle 4, but for noncertificated employees. Defendants argue that the language of the quoted sections plainly indicates that the Maryland legislature did not intend that ¤ 3-501 would apply to public school employers.

Defendants also point out that the definition of “employer” in the “Wage Payment and Collection” subtitle of Title 3 of the Labor and Employment Article does not include State entities. MD. CODE ANN., LAB. AND EMPL. ¤ 3-501(b) (“Employer’ includes any person who employs an individual in the State or a successor of the person.”). By contrast, other definitions of “employer” within Title 3 include public entities. See, e.g., ¤ 3-301(b)(1) (“Employer’ means: (i) a person engaged in a business, industry, profession, trade, or other enterprise in the State; (ii) the State and its units; (iii) a county and its units; and (iv) a municipal government in the State.”).6 Defendants assert that the legislature did not intend that “person,” as used in the definition of employer in ¤ 3-501(b), would include the State or its instrumentalities. Otherwise, the legislature would not have listed “the State and its units” separately from “person” in ¤ 3-301(b)(1) and ¤ 3-801(b).

Plaintiff contends that the definition of “person” in the Labor and Employment Article, which is to apply to all sections within the Article, demonstrates that ¤ 3-501’s definition of “employer” includes the Board. MD. CODE ANN., LAB. AND EMPL. ¤ 1-101(d) (“Person’ means an individual, receiver, trustee, guardian, personal representative, fiduciary, or representative of any kind and any partnership, firm, association, corporation, or other entity.”). Plaintiff reasons that the Board would fall within the “corporation, or other entity” category. Plaintiff’s argument is undermined by the fact that the statute defines “governmental unit” in addition to “person” in ¤ 1-101(b) (“Governmental Unit’ means (1) the State; (2) a county, municipal corporation, or other political subdivision of the State; or (3) a unit of the State government or of a political subdivision”). While it is possible that a governmental unit could be considered an “entity” in the “person” definition, it is more likely that the legislature would have explicitly included the term “governmental unit” within the definition of “person,” had it intended to include State employers.

The court agrees with Defendants’ statutory interpretation. The language in ¤ 6-411(b) plainly indicates that ¤ 3-501 does not apply to public education employers. The other statutory language in the Labor and Employment Article supports the argument that public education employers, if not all governmental employers, are excluded from ¤ 3-501.7 Plaintiff has not presented any persuasive argument to show how the court could apply ¤ 3-501 without acting in conflict with ¤ 6-411. Therefore, Plaintiff’s MWPCL claim in Count IX will be dismissed.

IV. Motion for Leave to File Surreply

Local Rule 105.2.a provides, “[u]nless otherwise ordered by the Court, surreply memoranda are not permitted to be filed.” The court may permit a surreply when a party would not otherwise have an opportunity to respond to arguments raised for the first time in the opposing party’s reply. Khoury v. Meserve, 268 F.Supp.2d 600, 605 (D.Md. 2003). Plaintiff seeks leave to file a surreply because she claims that Defendants presented new arguments and misconstrued Plaintiff’s voluntary dismissal of the Board as to her ¤ 1983 claims. The motion will be denied, as the court understood that Plaintiff only dismissed her ¤ 1983 claims as to the Board. Further, Defendants did not raise new arguments in their Reply, but rather merely responded to Plaintiff’s arguments.

V. Conclusion

For the foregoing reasons, Defendants’ motion to dismiss will be granted in part and denied in part, Plaintiff’s motion for leave to file second amended complaint will be granted, and Plaintiff’s motion for leave to file surreply will be denied. A separate order will follow.



United States District Judge


1 In her Amended Complaint (paper 10), Plaintiff states that she “volunteers” her physician’s letter. Presumably she means “offers,” as the statement of facts indicates that she did not deliver the letter until approximately one week later.

2 Plaintiff’s complaints do not identify specific employment actions that she contends are retaliatory. Instead, she puts forth a chronological list of events in the beginning of the complaints and then generally alleges that the conduct constitutes retaliation. Thus, the analysis of the retaliation claim or claims is difficult. Plaintiff’s listing of events in her opposition to the motion to dismiss merely reiterates the events set forth in the complaint.

3 For the RA and ADA claims, Plaintiff sued the individuals only in their official capacities. (Paper 10 ¦¦ 5, 6). Suits against individuals in their official capacity are merely alternative means of suing the entity for whom they work. Where, as here, the entity itself is sued, such actions are redundant.

4 Plaintiff does not argue that, if there is either no proper allegation of loss of employment, or there is no fundamental right to employment, Congress nevertheless validly abrogated sovereign immunity for some less all encompassing aspect of this case.

5 Although the Amended Complaint names the Charles County Board of Education, along with Mr. Richmond and Mr. Hettel in their individual capacities, Plaintiff filed a notice of voluntary dismissal of these counts against the Board. (Paper 18).

6 Title II states that no qualified individual with a disability shall “be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity.” 42 U.S.C. ¤ 12132. The federal courts are currently divided over whether Title II creates a cause of action for employment discrimination. See Lex K. Larson, Employment Discrimination ¤ 152. 04[2][c] (2d ed.). The United States Court of Appeals for the Fourth Circuit has assumed that Title II can be used for employment discrimination claims without expressly analyzing the issue. Id. (citing Rogers v. Dep’t of Health & Env’t Control, 174 F.3d 431 (4th Cir. 1999)(deciding on the merits a Title II claim against the State in its capacity as an employer)). Therefore, this Court also assumes, without deciding, that Title II is available for employment dscrimination claims.

6 See also MD. CODE ANN., LAB. AND EMPL. ¤ 3-801 (“Employer, defined”). Section 3-801 first provides, “(a) [i]n this subtitle, “employer” means a person engaged in a business, industry, profession, trade, or other enterprise in the State.” In subsection (b), the statute clarifies that “[e]mployer’ includes: (1) a unit of State or local government that employs individuals who are not subject to the provisions of Title 9, Subtitle 5 of the State Personnel and Pensions Article; and (2) a person who acts directly or indirectly in the interest of another employer with an employee.”

7 The court need not decide whether ¤ 3-501 covers other State employers, although at least one other court has suggested that public employers are exempt. See Burkett v. Wicomico County, No. Civ. JFM-05-896, 2006 WL 827381, at *5 n.2 (D.Md. Mar. 24,2006) (declining to decide whether ¤ 3-501 applied to governmental employers, but noting in a footnote that “this argument appears meritorious”).