Norville v. Board of Education

862 A.2d 477

160 Md. App. 12

David NORVILLE v. ANNE ARUNDEL COUNTY BOARD OF EDUCATION, et al.

No. 00761, September Term, 2003.

Court of Special Appeals of Maryland.

December 6, 2004.

David C. Slade, Bowie, for Appellant.

William D. Evans, Jr. (Linda M. Schuett, County Atty., on the brief), Annapolis, for Appellees.

Panel: HOLLANDER, BARBERA, and LAWRENCE F. RODOWSKY (Retired, specially assigned), JJ.

HOLLANDER, Judge.

This case involves a claim of age discrimination in employment, brought under federal and Maryland law. We must determine whether, in a suit initiated by a former employee of a county board of education, the school board is an arm of the State¹ for purposes of sovereign immunity.

David Norville, appellant, was discharged by the Anne Arundel County Board of Education (the "Board") when he was 48 years old. That termination led Norville to file suit in the Circuit Court for Anne Arundel County against the Board and Norville's supervisor, Don Cramer, appellees. In an Amended Complaint, Norville alleged, inter alia, age discrimination under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (the "ADEA"), as well as the Fair Employment Practices Act, Md. Code (1957, 2003 Repl. Vol.), Art. 49B, § 16(a). Norville also asserted claims for common law wrongful discharge and intentional infliction of emotional distress. In successive rulings over a period of months, the court dismissed all of Norville's claims prior to trial.

On appeal, Norville poses the following questions:²

I. Was Norville's Article 19 rights [sic] violated by the Circuit Court of Anne Arundel County?

II. Did the Circuit Court err when it held that the Eleventh Amendment bars an ADEA suit against the Anne Arundel County Board of Education in State court, and consequently dismissed Norville's ADEA count against the Board?

III. Did the Circuit Court err when it held that there is no private cause of action under Article 49B, § 16, and consequently dismissed Norville's 49B count against the Board?

IV. Did the Circuit Court err when it held that Norville's common law count of Wrongful Discharge against the Board was preempted by both federal and state statutory remedy, and consequently dismissed Norville's Wrongful Discharge count against the Board?

For the reasons set forth below, we shall affirm in part and reverse in part and remand for further proceedings.

FACTUAL SUMMARY

Appellant began his employment with the Board as a Media Technician in August 1973, and was later promoted to the position of Media Production Specialist. He was discharged by the Board on September 30, 1998.

On November 6, 1998, Norville, then pro se, filed a complaint against the Board with the Equal Employment Opportunity Commission (the "EEOC"). He said, in part: "My statement concerns Anne Arundel Co. Public Schools.... My immediate supervisor is Don Cramer, production and Design Super." Norville claimed that he "was discriminated against in violation of the Age Discrimination in Employment Act of 1967, as amended, because of my age, 48, with respect to discipline, and discharge."

In the affidavit Norville submitted with his complaint, he averred that he "was not given a satisfactory reason for the disciplinary action." Appellant added: "I was informed that I was being discharged because of budgetary reason [sic]." Norville also averred that, on or about June 24, 1998, he received "a disciplinary action" from Cramer, asserting that he was "insubordinate" because he "refused to allow" his wife to operate a school vehicle to transport photographic equipment.³ Moreover, appellant claimed that, on September 30, 1998, he was "forced to retire...." Norville recalled:

I went on vacation on June 29, 1998 for two weeks. Upon my return from vacation a letter was sent to me informing me that they had received the fy99 budget which reduced the number of positions in our department. I was informed that I had to apply for the two positions when they were posted. In my department they [sic] were other specialists: (1) Jenifer Corwin, age mid-20's, Lori Berdequez, age late 30's, and Joe Thompson, age late 30's, Steve Greg, age late 30's, and myself. I was not selected for the positions, but they retained their position.

On September 16, 1998, I received a letter informing me that I was not selected for the position. And I was offered a demeaning position as Teacher Assistant retaining my salary for one year or forced retirement.

On September 30, 1998, I was forced to retire from my position. I was the only person I am aware of that was forced to retire.

I believe this happened to me because of my age, 48, and my salary — $53,000 yearly plus benefits. All of my co-workers are being paid at a lesser rate than I. The school system would save a lot of money in their budget.

(Emphasis added).

The EEOC forwarded a copy of the complaint to the Maryland Commission on Human Relations (the "MCHR" or the "Commission"). In a letter dated December 22, 1998, the Commission notified appellant of its receipt of the EEOC complaint, which it considered as "filed with the [MCHR] as of the date it was filed with EEOC." Further, the Commission advised that, pursuant to a "Worksharing Agreement" between the EEOC and the Commission, the EEOC would investigate the matter in order "to avoid duplication of effort."

After the EEOC completed its investigation, it sent a "Dismissal and Notice of Rights" letter to Norville, dated December 21, 1998, advising that it was "closing its file" because it was "unable to conclude that the information obtained establishes violations of the statutes." However, the EEOC added: "This does not certify that the respondent is in compliance with the statutes. No finding is made as to any other issues that might be construed as having been raised by this charge." The EEOC also informed appellant of his "right to sue" under federal law, in either federal or state court, "within 90 days" of the notice.

On March 17, 1999, appellant served notice on the Anne Arundel County Solicitor of an age discrimination claim. He did not specifically refer either to the Local Government Tort Claims Act, Maryland Code (2002 Repl. Vol.), § 5-304 of the Courts and Judicial Proceedings Article ("C.J."), or the Maryland Tort Claims Act, Maryland Code (1984, 1999 Repl. Vol.), § 12-101 through § 12-110 of the State Government Article ("S.G.").

The next day, March 18, 1999, Norville filed suit against appellees in the United States District Court for the District of Maryland, which he later amended on June 2, 1999. See Norville v. Anne Arundel County Bd. of Educ., No. MJG99-764, 1999 WL 1267696. The Amended Complaint contained claims for compensatory and punitive damages based on six grounds: violation of the ADEA; violation of Art. 49B, § 16(a); unjust enrichment; quantum meruit; wrongful discharge; and intentional infliction of emotional distress. Among other things, Norville alleged that Cramer deliberately harassed him in an effort to fabricate a record of unsatisfactory performance by appellant, even though appellant's performance was exemplary. He also claimed that his position was awarded to a person under the age of 40.

Appellees moved to dismiss the action or, alternatively, for summary judgment. On November 23, 1999, the federal court (Garbis, J.) issued a Memorandum and Order in which it dismissed the ADEA claim against Cramer, with prejudice, and dismissed the remaining claims against Cramer, without prejudice.

In dismissing the ADEA claim against Cramer, the district court noted that appellant's failure to name Cramer in his EEOC complaint constituted a "procedural bar" to the claim against Cramer in his individual capacity.⁴ In addition, it agreed with Cramer that, even if he had been properly named in the EEOC complaint, the ADEA does not authorize personal liability against a supervisory employee who discharges an employee. Rather, the ADEA prohibits an employer from discriminating based on age. See 29 U.S.C. § 630(b) (defining "employer"); Birkbeck v. Marvel Lighting Corp., 30 F.3d 507 (4th Cir.1994).

In contrast to its ruling as to Cramer, the court stayed the claims against the Board to await the Supreme Court's decision in Kimel v. Fla. Bd. of Regents, 157 F.3d 908 (11th Cir.1998), cert. granted, 525 U.S. 1121, 119 S.Ct. 901, 142 L.Ed.2d 901 (1999). In January 2000, the Supreme Court decided Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000). Thereafter, in reliance on Kimel, the district court dismissed the federal claims against the Board, with prejudice, by Order dated February 20, 2001. The court also dismissed the remaining State claims against the Board, without prejudice. In doing so, the court observed: "It appears that Rule 2-101(b) of the Maryland Rules of Procedure would be applicable[ ] with regard to the state law claims over which this Court declines to exercise jurisdiction."⁵

Accordingly, on March 21, 2001, appellant filed suit against appellees in the Circuit Court for Anne Arundel County, alleging age discrimination in violation of Art. 49B, § 16(a); unjust enrichment; quantum meruit; common law wrongful discharge; and intentional infliction of emotional distress. After appellees moved to dismiss, the court held a hearing on September 24, 2001. Thereafter, on November 1, 2001, the court (Lerner, J.) entered an Order dismissing, with prejudice, the unjust enrichment and quantum meruit claims (Counts II, III). The remaining claims were also dismissed, but with leave to amend.

Norville then filed an Amended Complaint on November 26, 2001, consisting of eight counts (i.e., four identical claims against each defendant), for which he sought compensatory and punitive damages of $1,000,000 each and other relief. In particular, he alleged violations of the ADEA (Counts I and V); violations of Article 49B, § 16(a) (Counts II and VI); wrongful discharge (Counts III and VIII); and intentional infliction...