Marie M. McCray v. MARYLAND DEPARTMENT OF TRANSPORTATION, Maryland Transit Administration

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1215
MARIE M. MCCRAY,
Plaintiff - Appellant,
v.
MARYLAND DEPARTMENT OF TRANSPORTATION, Maryland Transit
Administration,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Ellen L. Hollander, District Judge.
(1:11-cv-03732-ELH)
Argued: December 10, 2013 Decided: January 30, 2014
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.

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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
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, 602 F.3d 605, 607 (4th Cir. 2010).

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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

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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.

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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

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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, 415 U.S. at 677–78 (“[T]he Eleventh Amendment
defense sufficiently partakes of the nature of a jurisdictional
bar so that it need not be raised in the trial court.”). There
are limits to how long a state may wait before claiming
immunity. For example, if a state loses a case on the merits

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after extensive discovery has taken place, it is inappropriate
for the state to then claim sovereign immunity. Ku v.
Tennessee, 322 F.3d 431, 435 (6th Cir. 2003). As stressed by
McCray, however, this case has not advanced to the discovery
stage. Given the preliminary stage of the case, it is not too
late for the MDOT and MTA to raise their sovereign immunity
defense, even though it is raised before us for the first time.
Thus, we affirm the district court’s rulings on McCray’s ADEA
and ADA claims, albeit based on sovereign immunity, not
legislative immunity.
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

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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, 600 F.3d 552, 561 (5th Cir. 2010)).2
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
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.

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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, 302 F.3d at 246–47 (citing Illinois State Employees
Union v. Lewis, 473 F.2d 561, 565–66 (7th Cir. 1972)). Again,
evidence of how defendants selected McCray’s position (and other
positions) for termination go to the crux of McCray’s race
discrimination claims. Absent discovery, she has no adequate
access to this evidence, and therefore no way to shield herself
from a premature summary judgment motion.
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

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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.

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The protections of legislative immunity extend beyond
legislators themselves. Bogan v. Scott-Harris, 523 U.S. 44, 49,
55 (1998). The determination of legislative immunity is based
on the function being fulfilled—not the title of the actor
claiming immunity. Kensington, 684 F.3d at 470. Actions that
qualify as legislative “typically involve the adoption of
prospective . . . rules that establish a general policy
affecting the larger population. They also generally bear the
outward marks of public decisionmaking.” Washington Suburban,
631 F.3d at 184 (internal quotations marks, citations and
alteration omitted). Accordingly, this Court has had “no
trouble concluding that enacting a budget is a legislative act.”
See Kensington, 684 F.3d at 471. Also relevant to this case,
the Supreme Court has noted that “the termination of a position
. . . unlike the hiring or firing of a particular employee, may
have prospective implications” and is therefore more likely to
be legislative. Bogan, 513 U.S. at 56. In this case, both
parties accept that McCray’s position was terminated due to
budget-making.3
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)

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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., 894 F.2d 697, (4th Cir. 1990) (applying
legislative immunity to a government department that recommended
that a position be cut pursuant to a mayor’s request), overruled
on other grounds by Berkley v. Common Council of the City of
Charleston, 63 F.3d 295, 303 (4th Cir. 1995); see also Baraka v.
McGreevey, 481 F.3d 187, 196–97 (3d Cir. 2007) (holding that
governor’s appointee’s actions in “advising and counseling
Governor McGreevey and the Legislature are also legislative” and
protected under legislative immunity). This case law stands for
the proposition that just as a legislator is immune from
discrimination lawsuits when she makes budget decisions based on
improper animus, aides to that legislator are also immune.
Legislative immunity is a shield that protects despicable
motives as much as it protects pure ones. For this reason, the
district court’s conclusion is correct insofar as it shields the
could argue that the budget cuts were therefore executive in
nature, not legislative. We need not decide this thorny
question, however, because our holding that the Rule 56(d)
motion should have been granted rests on our finding that
McCray’s lawsuit targets discrimination that occurred before any
legislative activity occurred.

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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

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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

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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., 993 F.2d 132, 136 (7th
Cir. 1993) (defining a tangible employment action for ADEA
purposes as including an employer giving an employee
“significantly diminished material responsibilities”) (cited
with approval in Burlington Indus, Inc. v. Ellerth, 524 U.S.
742, 761 (1998)). Put another way, the basis of McCray’s
lawsuit is not the financial storm that rocked the state and
forced Maryland’s government to scale back its budget. Rather,
her claim is that the MTA and MDOT gave her a lightning rod to
hold and sent her to the roof.
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

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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

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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.

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