Demby v. Maryland Department of Health Mental Hygiene

Full title: ROSETTA DEMBY, ET AL. v. MARYLAND DEPARTMENT OF HEALTH MENTAL HYGIENE, ET…

Court: United States District Court, D. Maryland

Date published: Feb 13, 2009

CIVIL NO. CCB-06-1816 (D. Md. Feb. 13, 2009)

Opinion

CIVIL NO. CCB-06-1816.

February 13, 2009

MEMORANDUM

CATHERINE BLAKE, District Judge

Now pending is the defendants' motion to dismiss (docket entry no. 46) the amended complaint filed November 9, 2006 on behalf of plaintiffs Rosetta Demby, Shirley Williams, and Leila Johnson; and the motions for leave to file second amended complaints by Johnson (docket entry no. 138) and by Demby and Williams (docket entry no. 139). The issues have been fully briefed and no oral hearing is necessary. The majority of my rulings are consistent with, and explained by, the opinion issued on March 31, 2008 in the related case of Alston v. MDHMH, CCB-05-2104.

Demby and Williams

Count I — ADA Discrimination

This claim is brought under Title II of the ADA not as an employment claim but rather alleging that the plaintiffs, as clients of the Sheltered Workshop, and beneficiaries of the state's services, were discriminated against in the provision of those services because of their disability. See Baird v. Rose, 192 F.3d 462, 467 (4^th Cir. 1999). The State is not immune from valid Title II claims under the Eleventh Amendment. U.S. v. Georgia, 546 U.S. 151, 159 (2006). Leave to amend will be granted as to Count I.

Count II — ADA Retaliation

The plaintiffs allege retaliation against the state defendants under the ADA. The question is whether Eleventh Amendment immunity applies. While I relied on Demshki v. Monteith, 255 F.3d 986 (9^th Cir. 2001) in Alston in finding that the retaliation provision of the ADA did not abrogate the state's immunity, Demby and Williams correctly distinguish Demshki in that it applied to retaliation related to a Title I claim, not a Title II claim. 255 F.3d at 988. No specific authority establishing Eleventh Amendment immunity in a Title II retaliation claim has been cited by defendants, and in the only cases I have found addressing this discrete issue courts have found such immunity not to apply. See Mendez-Vazquez v. Tribunal General De Justicia, 477 F. Supp. 2d 406, 411-13 (D. P.R. 2007) (dismissing an ADA Title II employment discrimination claim on Eleventh Amendment immunity grounds but allowing a related retaliation claim, brought under Title V, to proceed); Sarkissian v. W. Va. Univ. Bd. of Governors, 2007 WL 1308978, *8 (N.D.W.Va. May 3, 2007) (unpublished) (finding a state university not to be entitled to Eleventh Amendment immunity from plaintiff's Title II retaliation claims brought under Title V). Accordingly, insofar as Demby and Williams allege they were threatened by Turner, and Demby was fired, because of their participation in the law enforcement investigation initiated by Merle Warfle (2d Amd. Cplt. ¶¶ 71-75, 77) prior to September 1, 2004, when Delmarva took over, leave to amend to state a retaliation claim will be granted.

Counts III and IV — Rehabilitation Act

Count V — Title VII Hostile Work Environment

See Alston. See Nat'l R.R. Passenger Corp. v. Morgan536 U.S. 101117

Count VI — Title VII Retaliation

Demby has stated a claim as to her firing in January 2004. Williams has stated a claim, depending on the nature of the 2003 threats, but she may not rely on her 2005 EEOC charge, which was brought well after these defendants had turned the Workshop over to Delmarva. Delmarva is not part of this case. Leave to amend will be granted in part.

Count VII — § 1983 Hostile Work Environment

This count does not state a claim as to individual defendants Mowbray and Stanley, particularly in light of their apparent departures from Workshop employment in 2002 and 2000, respectively.¹ Leave to amend will be granted, but Mowbray and Stanley will be dismissed.

1 There is no reason to think additional discovery is needed when we already have a representation from their employer and no information to the contrary is proffered.

Count VIII — § 1983 Retaliation

While it is a close call as to defendant Woolford, and noting some inconsistency between the plaintiffs' alleged status as clients for ADA purposes and employees for the § 1983 First Amendment retaliation claim, this claim is not clearly futile. As the other retaliation claims are proceeding in any event, leave to amend will be granted.

Johnson

Count I — ADA Discrimination

Leave to amend is granted for this Title II claim on behalf of Johnson as a beneficiary of services, not an employee.²

2 The statute of limitations issue raised as to this and other counts will not be decided on a motion to dismiss, as the defense is not evident from the face of the proposed amended complaint and there are contradictory factual representations in the record.

Count II — Rehabilitation Act Discrimination

Leave to amend will be granted.

Count III — Title VII Sexual Harassment

This claim is encompassed in Count IV. Leave to amend will not be granted.

Count IV — Title VII Hostile Work Environment

Leave to amend will be granted.

Count V — Title VII Quid Pro Quo

While it is not clear that any acts have been sufficiently pled within the applicable time limits, this factual issue can better determined in connection with motions for summary judgment. Leave to amend will be granted.

Count VI — § 1983 Sexual Harassment

This is duplicative of Count VII and will not be allowed.

Count VII — § 1983 Hostile Work Environment

Leave to amend will be granted but not as to a substantive due process theory and not as to defendants Maxine Stanley, William Mowbray, John Marine, and Emerson Johnson, who will be dismissed.

Count VIII — § 1983 Conspiracy

Count IX — § 1983 Retaliation

No claim has been stated; and leave to amend will be denied.

Count X — § 1981 Race Discrimination

No claim has been stated, and leave to amend will be denied.

In summary, the second amended complaints may be filed, but the plaintiffs may proceed only on the claims allowed above. A separate Order follows.

ORDER

For the reasons stated in the accompanying Memorandum, it is hereby ORDERED that:

1. the plaintiffs' motions for leave to file second amended complaints (docket entries no. 138 and 139) are Granted in part and Denied in part; and

2. the defendants' motion to dismiss (docket entry no. 46) is Denied as moot.