IN THE CIRCUIT COURT OF MARYLAND
FOR BALTIMORE COUNTY

PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION TO DISMISS

Plaintiffs, Diangela Thomas-Miller, Chandralynn Hilton, and Michael Robinson, by and through their attorney, Michael J. Snider, Esq., Snider & Fischer, L.L.C., respectfully request that the Court DENY Defendant’s Motion to Dismiss, and state in support:

The State of Maryland Has Waived Sovereign Immunity

In their claim, Plaintiffs allege violations of State and Federal Overtime laws, common law, and breach of contract (See Complaint).  The State of Maryland has waived sovereign immunity to all of these claims, as regarding this Complaint.

It appears that the State would like to have its cake and eat it too.  First, it claims that the Plaintiffs are not ‘covered employees’ for purposes of utilizing the Administrative Grievance procedure set out in §12-101 et seq.  of the State Personnel and Pensions Article (See Exhibit B to Complaint).  The procedure is an exclusive remedy.  Id, §12-103.  Now the State claims that these same employees’ claims are “barred” by state sovereign immunity
(Motion to Dismiss at 3).  This same argument, against the same Defendant as in this case, made by the same counsel, was raised in Robinson v. Bunch, III., et al., 367 Md. 432, 443, 788 A. 2d 636, 643 (2002).  The Court in that case explicitly rejected this same argument and noted:

“The above-reviewed statutory provisions make it clear that covered state employees are entitled to overtime compensation in accordance with applicable state law or the FLSA, whichever is greater, that there is a duty on the part of the State or the appropriate officials to make such payments or provide for them through the budget process, and that sovereign immunity is not a defense.

In light of these statutory provisions, if the General Assembly had not enacted a specific statutory remedy, state employees would certainly have a common law remedy in Maryland courts to enforce their rights to mandated overtime compensation under state or federal law.”

Id.  Further, Section 14-103 of the State Personnel and Pensions Article of the Maryland Code bars the defense of sovereign immunity in any administrative, arbitration, or judicial proceeding involving an employee grievance or hearing that is held under (1) Division I or a regulation adopted under it; or (2) a personnel policy or regulation that governs classified employees of the University System of Maryland or Morgan State University.

Section 8-302(b) of the State Personnel and Pensions Article^[1] of the Maryland Code mandates that covered employees are entitled to overtime compensation either under state law or the FLSA, whichever is greater and is embraced within §14-103’s waiver of sovereign immunity. Id.  Furthermore, §14-204 authorizes the Governor to include in the State budget sufficient money to pay all awards made against this State or any officer or unit of this state.

Sections 12-101 through 12-405 of the State Personnel and Pensions Article of the Maryland Code sets forth an administrative remedy for employees to deal with dispute with the appropriate state officials concerning overtime compensation.  Plaintiffs attempted to initiate the grievance procedure set forth by these sections and were denied by the Secretary of the Department of Public Safety and Correctional Services.  The Secretary denied Plaintiffs’ claims as they were contractual employees not covered by the grievance procedure. Plaintiffs should not be denied a remedy to redress their claims.

Section 13-101 of the State Personnel and Pensions Article of the Maryland Code defines a contractual employee as

“An individual who, under a written agreement, provides temporary

personal services to the State for pay; who is not employed in a

budgeted position; and who has an employer-employee relationship

with the State in which State: (i.) furnishes necessary tools and a place

to work; (ii.) has the right control and direct the details, means, and

results of the performance of the services; and (iii.) has the right to

discharge the individual from employment.”

It may be a material dispute of fact whether Plaintiffs were or were not temporary employees.  It is clear that each had several contracts with the State of Maryland, Department of Public Safety and Correctional Services, spanning a period of over 14 months.  The State of Maryland should not be permitted to unilaterally classify these employees as contractual for the purposes of denying all employee benefits and totally escaping liability.  Either the  Plaintiffs were “employees” and can pursue the Grievance procedure, or were not and can sue the State in this court.

The State Has Waived Sovereign Immunity for Contract Claims

In addition, these employees had employment contracts with the State of Maryland, Department of Public Safety and Correctional Services.  Section 12-201 of the State Personnel and Pensions Article of the Maryland Code bars the defense of sovereign immunity for contract actions.

It would be inequitable to hold that the state may arbitrarily avoid its obligation under a contract after Plaintiffs have been induced to expend time and money in the performance of their obligations.  Denying Plaintiffs, having performed their obligations under their respective contracts, the right to sue the state after it defaulted would constitute a denial of due process.  Archer, et al. v.  Rockingham County, 144 N.C. 550, 556 (2001).

Article 19 of the Maryland Declaration of Rights states

“That every man, for any injury done to him in his person or property,

ought to have justice and right, freely without sale, fully without

any denial, and speedily without delay, according to the Law of the

land.”

This Article insures that the rights of Maryland citizens are not arbitrarily denied by the government.  Despite the absence of a constitutional violation, Article 19 guarantees access to the courts.  Therefore, Plaintiffs should not be denied any remedy to address the failure of Defendant to compensate them for overtime hours worked and their wrongful discharges.  See, Robinson v. Bunch, supra.

Plaintiffs Have Exhausted Their Administrative Remedies

The Court in Robinson upheld dismissal of certain overtime claims against DCSPS

The intent of Plaintiffs’ suit against Defendant is not a direct action and has not been instituted for the purpose of circumventing the state grievance procedure.  Plaintiffs attempted to process this matter through the Grievance procedure (Exhibit A to Complaint); it is the State that has attempted to deny Plaintiffs any remedy at all for the State’s violations of the law (Exhibit B; Motion to Dismiss).

The Court of Appeals has held that if a

“’statute has created and imposed a clear, positive duty,’ upon

governmental officials to pay a sum of money, the entity or

person to whom the money is owed has a ‘plain remedy, by

ordinary action at law, which it could…pursue for the recovery

of the money.’”  Robinson, 367 Md. 432, 444, 788 A. 2d 636, 644,

quoting George’s Creek Coal & Iron Co. v. County Comm’rs

of Allegany Co.,59 Md. 255, 261 (1883).”

            These Overtime Compensation Claims Are Part of the Employment Contract

The Court of Appeals quoted with approval the statements of Judge Soper that “the provisions of the FLSA with reference to…overtime compensation…are read into and become a part of every employment that is subject to the terms of the Act.”  Robinson, 367 Md. 432, 444, 788 A. 2d 636, 644, quoting Roland Electrical Co. v. Black, 163 F. 2d 417, 426 (4^th Cir. 1947).

Treble Damages are Provided Under Maryland Law

§§3-501, 3-507 and 3-507.1 of the Labor and Employment Article provide:

 
§ 3-501.
(a) In this subtitle the following words have the meanings indicated.
(b) "Employer" includes any person who employs an individual in the State or a successor of the person.
(c)       
(1) "Wage" means all compensation that is due to an employee for employment.
(2) "Wage" includes:

(i) a bonus;
(ii) a commission;
(iii) a fringe benefit; or
(iv) any other remuneration promised for service.

 §3-507
 (b)
(1) If, in an action under subsection (a) of this section, a court finds that an employer withheld the wage of an employee in violation of this subtitle and not as a result of a bona fide dispute, the court may award the employee an amount not exceeding 3 times the wage, and reasonable counsel fees and other costs.

(2) If wages of an employee are recovered under this section, they shall be paid to the employee without cost to the employee.

        § 3-507.1

(a) Notwithstanding any remedy available under § 3-507 of this subtitle, if an employer fails to pay an employee in accordance with § 3-502 or § 3-505 of this subtitle, after 2 weeks have elapsed from the date on which the employer is required to have paid the wages, the employee may bring an action against the employer to recover the unpaid wages.

(b) If, in an action under subsection (a) of this section, a court finds that an employer withheld the wage of an employee in violation of this subtitle and not as a result of a bona fide dispute, the court may award the employee an amount not exceeding 3 times the wage, and reasonable counsel fees and other costs.”

The State has not shown how these provisions are inapplicable.  If they apply, the remedies provided also apply - and Plaintiffs can recover treble damages.

Attorney Fees are Recoverable Under Maryland or Federal Law

The same provisions cited above (FLSA, Maryland overtime statute and caselaw, §3-507) provide for reasonable attorney fees.  This is a waiver of sovereign immunity.  The State is liable for payment just like any other employer.

In Alden v. Maine, 527 U.S. 706, 144 L. Ed. 2d 636, 119 S.Ct. 2240 (1999), the Supreme

Court held that the Eleventh Amendment bars employees from bringing FSLA enforcement cases against non-consenting states in state court.  The State of Maryland has waived sovereign immunity as a defense and thus has consented to this suit.  Robinson, supra.

Punitive Damages

Plaintiffs withdraw their claim for punitive damages.

Request for Hearing

Plaintiffs request a Hearing on this Motion.

Conclusion

WHEREFORE, for these reasons, Plaintiffs respectfully request this Court to permit them to maintain their action against Defendant in state court and to DENY Defendant’s Motion to Dismiss.          

Respectfully submitted,                                                                 

                                                                  Michael J. Snider, Esq.
                                                                  Snider & Fischer, L.L.C.
                                                                  104 Church Lane, Suite 201
                                                                  Baltimore, Maryland 21208
                                                                  410-653-9060 phone
                                                                  410-653-9061 fax

Certificate of Service

I certify that a copy of the foregoing was mailed, US Postage Prepaid, to:

Michele McDonald, Esq.
Assistant Attorney General, DPSCS
6776 Reisterstown Road, Suite 313
Baltimore, Maryland 21215
June 27, 2003                                         
Michael J. Snider, Esq.

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^[1]   Plaintiffs were referring to §8-302 of the State Personnel and Pensions Article of the Maryland Code in their Complaint (See Motion to Dismiss at 5-6).  If required, the request leave to file an Amended Complaint.