Case Information
*1 Before KING, GREGORY, and FLOYD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published opinion. Judge Gregory wrote the opinion, in which Judge King and Judge Floyd joined.
ARGUED : John Henry Morris, Jr., LAW OFFICE OF JOHN H. MORRIS, JR., Baltimore, Maryland, for Appellant. Jennifer L. Katz, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellee. ON BRIEF : Douglas F. Gansler, Attorney General of Maryland, Eric S. Hartwig, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellee.
GREGORY, Circuit Judge:
Appellant Marie McCray worked for the Maryland Transit Administration (“MTA”), a subsidiary of the Maryland Department of Transportation (“MDOT”), for nearly four decades before her position was terminated because of budget cuts. McCray brought this action in federal district court alleging various forms of discrimination. The district court dismissed McCray’s suit on legislative immunity grounds before any meaningful discovery could be conducted. We find that McCray’s complaint alleges discriminatory conduct that occurred before any legislative activity. Because McCray’s case was dismissed before she had the opportunity to discover evidence necessary to her claims, we conclude that this dismissal was premature under Rule 56(d) of the Federal Rules of Civil Procedure. However, we find that McCray’s age discrimination and disability discrimination claims are barred by sovereign immunity. We affirm in part, vacate in part, and remand.
I.
Marie McCray began working for the Maryland Transit Authority, a precursor of the MTA, in 1971. [1] Her principal duty *3 was to assemble an annual rider usage report for trains and buses. For three decades, she worked without incident and received no complaints from supervisors.
McCray was diagnosed with diabetes in 1995, but the illness had no effect on her job performance until 2007. In June of that year, co-workers discovered her after she fainted on the floor near her desk. She was taken to the hospital in an ambulance and treated for low blood sugar. She was discharged the same day and returned to work one week later.
After the incident, McCray’s supervisor hectored her about her fitness and questioned her ability to work. It is this supervisor, Michael Deets, whose behavior is the core of McCray’s claims. Deets confronted McCray ceaselessly, even after she provided written documentation from her doctors establishing her medical fitness. Eventually, Deets and a human resources official demanded that McCray submit to an independent medical examination. This independent doctor confirmed what McCray’s doctors found: the diabetes would have no impact on her work. Nonetheless, Deets continued to plague McCray with questions about her health.
In January of 2008, McCray’s principal job—the annual usage report—was transferred to a consultant, and McCray was left without significant work. Other employees in her unit were *4 overwhelmed with work, but when McCray requested more responsibilities, she was denied.
In October of 2008, McCray was summoned to a meeting with Deets, who informed her that her position was abolished as part of a series of budget cuts in Maryland. In 2008, the Governor and Board of Public Works cut roughly 830 state positions to meet a budget shortfall.
McCray filed a claim with the United States Equal Employment Opportunity Commission (“EEOC”), alleging discrimination under Title I of the Americans With Disabilities Act (“ADA”), 42 U.S.C. §§ 12101–12113, the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621–634, and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq. She alleged that her position was cut because of discriminatory animus due to her race, gender, age, and disability.
Before any meaningful discovery was conducted, the MTA and MDOT filed a motion to dismiss. The agencies argued that because McCray’s position was cut pursuant to a state budget decision, legislative immunity blocked the lawsuit. At this point, McCray had not had an opportunity to gather information that was integral to her case. She had no evidence about how different positions were chosen for elimination, or on how many individuals with disabilities were employed by the MDOT or MTA. *5 As such, she moved under Rule 56(d) of the Federal Rules of Civil Procedure for more time to conduct discovery.
The district court converted the MDOT and MTA’s motion into a motion for summary judgment and then dismissed McCray’s claims. The court found that because her position was terminated pursuant to budget cuts, any lawsuit based on that termination was blocked by legislative immunity. Further, any discovery that McCray would conduct would be immaterial to the legislative immunity issue. “Because [McCray’s] proposed discovery relates to the motives of individual employees within the MTA and the MDOT,” the district court reasoned, “McCray has not identified any factual issue pertinent to . . . legislative immunity” that remained in dispute. J.A. 110. As such, the court also denied McCray’s 56(d) motion. McCray filed a timely appeal, and we have jurisdiction under 28 U.S.C. § 1291.
II.
The MDOT and MTA argue that sovereign immunity bars McCray’s age and disability discrimination claims. This argument is correct. “[A]n unconsenting State is immune from suits brought in federal courts by her own citizens.” Edelman v. Jordan, 415 U.S. 651 (1974). This protection extends to state agencies. See Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997). Therefore, absent abrogation of sovereign *6 immunity or consent from Maryland, McCray cannot seek injunctive or monetary relief from the MDOT or MTA. See Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363–64 (2001). Sovereign immunity has not been abrogated for ADEA claims and ADA Title I claims. See id. at 374 (ADA Title I claims); Kimel v. Fla Bd. of Regents, 528 U.S. 62 (2000) (ADEA claims); cf. Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 489–90 (recognizing abrogation of sovereign immunity for Title II claims but not Title I claims). Thus, absent waiver of sovereign immunity, McCray’s ADEA and ADA claims must be dismissed.
The MDOT and MTA raise their sovereign immunity argument
for the first time on appeal. McCray argues that the MDOT and
MTA waived this argument. We disagree. Our case law is clear
that “because of its jurisdictional nature, a court ought to
consider the issue of Eleventh Amendment immunity at any time,
even sua sponte.” Suarez Corp. Indus. v. McGraw, 125 F.3d 222,
227 (4th Cir. 1997). The Supreme Court has allowed sovereign
immunity to be claimed for the first time before a Court of
Appeals. Edelman,
III.
For McCray’s remaining Title VII claim, the key question is whether the district court erred in dismissing McCray’s action before she could conduct discovery. In general, summary judgment should only be granted “after adequate time for discovery.” See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment before discovery forces the non-moving party into a fencing match without a sword or mask. For this reason, when a party lacks material facts necessary to combat a summary judgment motion, she may file an “affidavit or declaration that, for specified reasons, [the party] cannot present facts essential to justify its opposition.” Fed. R. Civ. P. 56(d). In response, the district court may defer *8 consideration of the summary judgment motion, deny the motion, or “issue any other appropriate order.” Id.
We review a district court’s 56(d) ruling for abuse of
discretion. Harrods Ltd. v. Sixty Internet Domain Names, 302
F.3d 214, 244 (4th Cir. 2002). A Rule 56(d) motion must be
granted “where the nonmoving party has not had the opportunity
to discover information that is essential to his opposition.”
Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
n.5 (1986)). Further, such motions are “broadly favored and
should be liberally granted” in order to protect non-moving
parties from premature summary judgment motions. Greater Balt.
Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of
Balt., 721 F.3d 264, 281 (4th Cir. 2013) (quoting Raby v.
Livingston,
Absent the legislative immunity consideration, McCray’s
56(d) motion succeeds with ease. At the time of the summary
judgment motion, McCray had not had the opportunity to depose
supervisors at the MDOT and MTA. She had no information on how
positions were chosen for termination or why other positions
were kept. Without such information, it would be impossible for
her to make an argument that she was fired because of
*9
discriminatory reasons. As we have emphasized, 56(d) motions
for more time to conduct discovery are proper in cases such as
this one, where the main issue is one of motive and where most
of the key evidence lies in the control of the moving party.
See Harrods,
Further, many factors counseling against granting a 56(d) motion are absent here. Non-movants must generally file an affidavit or declaration before they can succeed on a 56(d) motion, or if not, non-movants must put the district court on notice as to which specific facts are yet to be discovered. Nader v. Blair, 549 F.3d 953, 961 (4th Cir. 2008). In this case, McCray filed such a declaration and identified the material she needed to discover. J.A. 93–95. Similarly, non- movants do not qualify for Rule 56(d) protection where they had the opportunity to discover evidence but chose not to. Harrods, 302 F.3d at 246 (noting that non-movant was entitled to 56(d) protection in part because it “was not dilatory in pursuing discovery”). There is no indication that McCray’s inability to *10 gather evidence was due to her own delay. In sum, if we set the legislative immunity argument aside, this case is an easy one: McCray’s 56(d) motion should be granted.
However, as the district court noted, legislative immunity complicates the issue because the evidence that McCray has yet to discover “is not material to whether defendants are entitled to legislative immunity.” J.A. 110. This assertion is correct, but we nonetheless vacate, because McCray’s complaint alleges discriminatory actions that occurred well before any legislative activity. For this reason, this behavior cannot be protected by legislative immunity, so the Rule 56(d) denial was premature.
A legislative immunity finding is a legal determination that we review de novo. Kensington Volunteer Fire v. Montgomery Cnty., 684 F.3d 462, 470–71 (4th Cir. 2012). Legislative immunity protects those engaged in legislative functions against the pressures of litigation and the liability that may result. See E.E.O.C. v. Wash. Suburban Sanitary Comm’n, 631 F.3d 174, 181 (4th Cir. 2011) [hereinafter Washington Suburban]. “The practical import” of legislative immunity “is difficult to overstate.” Id. It prevents those who were defeated in elections from waging political war through litigation. Id. It promotes a healthier, more thriving class of politicians by ensuring that legislative offices are not limited only to those individuals who are willing to withstand a lawsuit. Id.
The protections of legislative immunity extend beyond
legislators themselves. Bogan v. Scott-Harris,
*12
Finally, and most helpful to the MDOT and MTA, our case law
shows that legislative immunity extends to those individuals who
advise legislators. Kensington, 684 F.3d at 471; Baker v. Mayor
& City Council of Balt.,
MTA and MDOT from lawsuit based on the counsel they gave executive officials in Maryland who carried out the budget cuts.
Nonetheless, we vacate and remand because the complaint alleges discriminatory actions that took place before the legislative activity began. Our ruling in Washington Suburban guides our decision today. In that case, former municipal employees brought an age discrimination claim with the EEOC against a local government agency, the Washington Suburban Sanitation Commission (“WSSC”). Washington Suburban, 631 F.3d at 177. In late 2005, the WSSC’s Chief Information Officer conducted an assessment of the Information Technology department and concluded that it should be restructured, with several positions eliminated. Id. The restructuring required an increased budget, so WSSC executives met in 2006 and agreed to submit the new proposed budget to local legislators. Id. These legislators met to discuss the budget and sought advice from WSSC executives. Id. The legislators ultimately reached no decision on the proposal, which allowed the restructuring to go into effect by operation of law. Id.
The EEOC investigated the WSSC and requested information about how the Chief Information Officer selected positions for termination. This Court allowed the subpoena to be enforced. Id. at 185. Part of the basis for our decision was that the EEOC’s investigation was aimed at discriminatory actions taken *14 prior to and after the restructuring. Id. at 183. “In particular, the EEOC can continue with its stated current investigatory goals—determining whether WSSC discriminated in distributing training prior to the restructuring and whether it discriminated in hiring after the restructuring.” Id. Inquiries into how the WSSC developed its budget would be problematic, as would inquiries into the legislators’ deliberations on the proposal, because these actions were legislative ones that were protected by legislative immunity. Id. at 183–84. We upheld the subpoena, however, because the investigation was aimed at discriminatory behavior prior to and after these legislative actions.
As in Washington Suburban, McCray alleges discriminatory
behavior that occurred before any legislative action took place.
Per her complaint, her supervisor at the MTA stripped her of
responsibilities in the years leading up to budget cuts. Even
though her department was overwhelmed with work, her supervisor
refused to give McCray additional responsibilities, even after
she asked for more work. Thus, by the time of the 2008 budget
crisis which led to the termination of McCray’s position, Deets’
actions had already made McCray vulnerable and therefore
adversely affected her. McCray alleges her termination was a
foregone
conclusion
because
her
supervisor—driven
by
discriminatory animus—stripped her of her duties. Had the
*15
legislature simply terminated McCray’s position, that action
would be shielded by legislative immunity. Similarly, if
McCray’s supervisors advised the legislature to terminate her
position because of discriminatory animus, this too would be
protected by legislative immunity. In this case, however,
McCray’s allegation is that she was subject to discriminatory
adverse employment actions that made her position vulnerable to
the budget cuts that eventually came, and she alleges that these
actions were taken before any legislative activity. See Crady
v. Liberty Nat. Bank & Trust Co. of Ind.,
This case presents a more difficult situation than Washington Suburban, which involved a subpoena during an initial investigation, rather than a lawsuit. We explicitly noted this distinction in Washington Suburban. “The threat to legislative immunity and privilege in [full-blown lawsuits] is more acute *16 than it is here.” Washington Suburban, 631 F.3d at 182–83. However, the importance of this point in Washington Suburban lends support to our ruling here. We drew attention to the early stage of the proceedings in that case because it was unclear whether the investigation would ever ripen into a case threatening legislative immunity. Id. at 183 (“We also cannot assume the EEOC’s investigation will follow the path WSSC projects.”). In other words, a legislative immunity holding is premature if the case might evolve in a way that poses no threat to legislators. McCray’s case is far past the investigatory stage, but it focuses on behavior occurring before any legislative action. Thus, while the case here has advanced beyond the stage considered in Washington Suburban, the cases are similar because McCray’s lawsuit has not yet implicated legislative immunity and need not develop in a way that would pose a threat to legislators.
In sum, we conclude that the Rule 56(d) motion should have been granted because McCray’s lawsuit is aimed at discrimination that occurred before any legislative activity began. This is crucial to our 56(d) holding, because if legislative immunity were to apply, then the discovery that McCray requests would be irrelevant: her lawsuit would be barred regardless of whether the MDOT and MTA helped terminate her position because of discriminatory animus. However, because McCray’s lawsuit *17 alleges discrimination occurring before any legislative activity, the summary judgment dismissal was premature.
IV.
Because summary judgment was granted before Appellant had a chance to discover facts essential to her claim, and she alleged discrimination occurring before any legislative activity, the district court’s Rule 56(d) denial was an abuse of discretion. However, we find that the district court’s dismissal of McCray’s ADA and ADEA claims are supported by sovereign immunity. Accordingly, this case is
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
Notes
[1] Because this is an appeal from a summary judgment order,
we present the facts in the light most favorable to the non-
movant. Robinson v. Clipse,
[2] The language of Rule 56(d) appeared in Rule 56(f) before amendments in 2010, but these amendments made no substantial change to the rule. Id. at 375 n.6.
[3] The government action in this case was carried out by the Governor and Board of Public Works—not the legislature. By statute, Maryland law allows for limited budget cuts by action of the Governor and Board of Public works. Md. Code Ann., State Fin. & Proc. § 7-213(a). The Maryland constitution gives the governor a central role in cutting the budget when revenue falls short. Judy v. Schaefer, 627 A.2d 1039, 1049 (Md. 1993). One (Continued)