Welling v. Balt. City Bd. of Sch. Comm'rs

SHERRY WELLING v. BALTIMORE CITY BOARD OFSCHOOL COMMISSIONERS, ET AL.

No. 0097

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2015

January 13, 2016

UNREPORTED

Wright, Nazarian, Wilner, Alan M. (Retired, Specially Assigned), JJ.

Opinion by Nazarian, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Sherry Welling filed suit against the Baltimore City Board of School Commissioners, and later added Tamecca Chester, then-principal of Glenmount Elementary School (we will refer to them collectively as the "Board") after the Board decided not to renew her contract after fourteen years of employment. After some procedural wrangling we will detail below, the Board filed a second motion for summary judgment after the original dispositive motions deadline had passed. Ms. Welling moved to strike the Board's motion, but did not file any opposition to it. After a hearing, the Circuit Court for Baltimore City denied the motion to strike and granted summary judgment in favor of the Board. She appeals both decisions and we affirm.

I. BACKGROUND

Ms. Welling was hired by the Baltimore City Public Schools ("BCPS") as an elementary school teacher in August 1998. She taught at Brehms Lane Elementary School until June 2002, then transferred to Glenmount Elementary School. By letter dated May 29, 2012, BCPS's Human Capital Office notified her that her employment would be terminated, effective June 30, 2012, for the stated reason that she had not taken the required steps to renew her certification through the Maryland State Department of Education ("MSDE"). She filed a complaint¹ against the Board in the Circuit Court for Baltimore City seeking "reinstatement, damages and injunctive relief to redress the deprivation of [her] rights . . . [under] the Family and Medical Leave Act of 1993 ("FMLA")." She alleged that"BCPS used [her] FMLA leave as a negative factor in her discipline, evaluation, and termination[,] . . . [which] is clearly an interference with . . . [her] rights and actionable under 29 U.S.C. § 2615(a)(1)."

On February 28, 2014, Ms. Welling amended her complaint to seek

reinstatement, damages and injunctive relief to redress the deprivation of rights secured to [her] by the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. Sections 2601 et seq., the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. Sections 12101 et seq., Title 20 of Maryland's State Government Article ("Title 20"), Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e et seq. ("Title VII"), and the Maryland Wage, Payment and Collection Law.

Her amended complaint alleged that she

required medical leave during her employment from September 22, 2011 through September 30, 2011 while she underwent reconstructive surgery on her left third finger as a result of a serious medical condition involving nerve neuroma and a nerve deficit[;] . . . again from December 9, 2011 through December 12, 2011 as a result of a serious medical respiratory condition[;] . . .[and] again from January 13, 2012 through February 3, 2012 after being hospitalized for outpatient treatment at Sheppard Pratt Health System as a result of a depressive disorder and an anxiety disorder.

According to the amended complaint, Ms. Welling had notified her employer of the need and voluntarily provided a doctor's note for each medical leave of absence taken, and "[t]he Board [never] made . . . [any] additional inquiries to deem whether FMLA leave was appropriate." The amended complaint charged that despite all of this, "[t]he Board used[the appellant]'s FMLA leave as a negative factor in her discipline, evaluation, and termination."

In addition, the amended complaint alleged that "the Board discriminated against [her] on the basis of her . . . disabled son, . . . who was diagnosed at age two with autism[,]" by not allowing her to use FMLA leave to care for him, and that "[w]hile the Board may argue that the termination is a result of a lapsed certification, it is the Board that caused [the appellant's] certification to lapse."²

On January 10, 2014, the court issued a scheduling order that set a discovery deadline of September 8, 2014 and a deadline of October 9, 2014 for the filing of dispositive motions. The Board noticed Ms. Welling's deposition for September 5, 2014, but the deposition did not occur that day because of a scheduling conflict on the part of her counsel. Counsel for the Board became aware of this conflict upon receiving a facsimile message dated September 2, 2014, in which the counsel stated that the deposition "must be postponed for another day [due to an emergency hearing set on another matter]."

On September 5, 2014, the Board filed a Motion to Amend the Scheduling Order for the purpose of taking the appellant's deposition. Ms. Welling responded on September 12, 2014, and alleged-inexplicably, according to the Board-that "there is nolegitimate reason to amend the scheduling order . . . [because the parties have agreed that] the deposition will be taken on September 26, 2014." Even so, Ms. Welling failed to appear on that date, apparently because the court had not yet ruled on the Motion to Amend the Scheduling Order. On October 31, 2014, a motions judge granted the Motion to Amend the Scheduling Order and ordered that "[t]he discovery deadline is extended to November 18, 2014 to allow [for the appellant to be deposed]." Ms. Welling's deposition ultimately took place on the final day of the extended discovery period.

On December 10, 2014, the Board filed a Motion to Dismiss or in the Alternative Motion for Summary Judgment (the "Dispositive Motion").³ The Board argued that "Counts III, IV, and V of the amended complaint should be dismissed because [the appellant] has failed to state a claim upon which relief can be granted," and that it was entitled to summary judgment as to Counts I, II, IV, and V because there were no genuine issues of material fact. Ms. Welling responded on December 17, 2014 with a Motion to Strike, in which she argued that the court should strike the Dispositive Motion on the grounds that it was filed "beyond the time allotted in the Scheduling Order."⁴ Importantly, and as counsel acknowledged at oral argument in this Court, Ms. Welling filed noopposition to the Dispositive Motion, nor any other argument or evidence relating to its merits.

The court convened a hearing on both motions on February 27, 2015, during which counsel for Ms. Welling referred to her deposition and an affidavit incorporating the allegations in her complaint, but admitted neither into the circuit court record.⁵ That same day, "[f]or the reasons stated on the record at the hearing," the court issued an Order granting summary judgment in favor of the Board, and denying the Motion to Strike. This timely appeal followed.

II. DISCUSSION

Although Ms. Welling raises challenges both to the denial of her Motion to Strike and the court's decision to grant the Dispositive Motion, her decision not to oppose the Dispositive Motion on the merits effectively leaves us with nothing to review in that regard. Her appeal, then, turns on whether the circuit court erred in denying the Motion to Strike, and we see no abuse of discretion in that decision.

A. The Circuit Court Did Not Abuse Its Discretion In Denying The Motion To Strike.

Ms. Welling moved to strike the Dispositive Motion on the ground that the Board filed it late, and specifically after the dispositive motions deadline in the scheduling order had passed. She cites Md. Rule 2-504, which requires the circuit court in every civil action to "enter a scheduling order . . . [containing] a date by which all dispositive motions must be filed, which shall be no earlier than 15 days after the date by which all discovery must be completed." Id. at (a)(1) and (b)(1)(E). She contends that the original scheduling order, which contained a discovery deadline of September 8, 2014, and a motions deadline of October 9, 2014, was only amended for the purpose of allowing the Board to depose her, and that all other deadlines remained unchanged. From this, she argues, the Dispositive Motion, which was filed on December 10, 2014, was untimely and that the circuit court should have stricken it.

The Board counters that "the only reason that the [Dispositive Motion] was filed after the discovery deadline was because of Appellant's failure to appear for a properly noticed deposition." Their Dispositive Motion followed Ms. Welling's deposition—which was not taken until after the original close of discovery, and only then after the court intervened and ordered it—by about three weeks. And, the Board argues, the temporal propriety of dispositive motions is driven by broader questions of judicial economy rather than wooden adherence to the original schedule:

[a circuit] court's decision to entertain a motion for summary judgment filed after the deadline is appropriate where "it wouldbe against the interests of judicial economy for a party to be forced to move forward with trial after determining there are no genuine facts in dispute, and he or she is entitled to judgment as a matter of law, merely because the dispositive motion deadline has passed."

(quoting Benway v. Maryland Port Admin., 191 Md. App. 22, 43 (2010)). Under these circumstances, the Board claims, it would have made no sense for it to file the Dispositive Motion before it took Ms. Welling's deposition which, again, was delayed only because of her "refus[al] to appear for a properly noticed deposition [on September 26, 2014]."

Our review here is deferential. "The decision whether to grant a motion to strike is within the sound discretion of the trial court." First Wholesale Cleaners Inc. v. Donegal Mut. Ins. Co., 143 Md. App. 24, 41 (2002) (citing Lancaster v. Gardiner, 225 Md....