Berry v. Department of Human Resources

WILNER, Chief Judge. Fifteen employees of the State of Maryland, on behalf of themselves and members of two classes that they purport to represent, sued three State agencies and 24 State officials, in both their official and individual capacities, for misapplying the State Merit System law and thereby denying the plaintiffs opportunities for promotion and career development. 1 Three causes of action were asserted: (1) denial of the plaintiffs’ civil rights under 42 U.S.C. § 1983 by virtue of due process and equal protection deprivations; (2) racial discrimination in violation of 42 U.S.C. §§ 1981 , 1985, and 2000e et seq., the latter being commonly referred ⁴⁶⁴ to as Title VII (of the Civil Rights Act of 1964); and (3) violation of the State Merit System law. Both damages and a variety of injunctive relief were sought with respect to each claim. Each of these claims was based on the averment that the defendants had used various procedures available under the Merit System law to promote “preferred and pre-selected” individuals to vacant or newly created positions, in the process excluding the plaintiffs from the opportunity to apply for and obtain those positions.

This was accomplished, according to the plaintiffs, by such devices as (1) downgrading positions for the purpose of transferring preferred or pre-selected individuals not qualifying for the existing positions and then upgrading the positions in order to accomplish promotions; (2) downgrading “for recruitment to avoid competition for positions by individuals, such as Plaintiffs, who are on a list of persons eligible for promotion at the original grade level”; (3) reclassifying or declassifying positions to match the qualifications of preferred or pre-selected individuals who would not meet the qualifications for the existing positions; (4) reorganizing the workforce to create new positions or modify current positions to match the qualifications of preferred or preselected individuals; (5) designating preferred or pre-selected individuals as acting in positions for which they were not qualified so that, in time, they would acquire the requisite qualifications; (6) altering test scores of pre-selected individuals; and (7) a “myriad of other ad hoc devices and schemes,” none of which were described, to avoid offering promotional opportunities to the plaintiffs. The case was specially assigned to Judge Ellen Heller who, after conferring with the parties, entered a scheduling order setting specific time limits on the filing of certain motions and the completion of discovery. No one excepted to the dates fixed in that order, and so, by its terms, it became binding on the parties. Pursuant to that order, the defendants filed a timely motion to dismiss the complaint. ⁴⁶⁵ After a hearing and by Memorandum and Order filed December 21, 1989, the court (1) dismissed in its entirety Count I — the § 1983 action — on the grounds that the plaintiffs had not pled a sufficient property or liberty interest in the promotions allegedly denied them and that, in any event, the post-deprivation remedies available under the Merit System law were adequate; (2) dismissed the Title VII claim in Count II on the ground that such a claim could not be brought in State court; 2 (3) dismissed the § 1981 claim in Count II with respect to all plaintiffs but two (Kevin Berry and Carolyn Washington) on the ground that they had not sufficiently alleged that they were denied the right to make new contracts; and (4) dismissed Count III in its entirety on the ground that the plaintiffs had failed to exhaust administrative remedies available under the Merit System law.

In an effort to overcome some of these perceived deficiencies, the plaintiffs, on March 15, 1990, filed a proposed amended complaint. In addition to supplementing the factual averments in the first complaint, this new pleading added two new plaintiffs, six new defendants, and a new claim (for denial of equal protection under art. 24 of the Maryland Declaration of Rights). In the meanwhile, through a motion for reconsideration and a motion for summary judgment, the defendants asked the court to dismiss the § 1981 claims of Mr. Berry and Ms. Washington — the only ones remaining in the case. On May 24, 1990, the court entered an order striking the proposed amended complaint on the ground that, in light of the agreed scheduling order, it was filed too late.

Acting then on the motion for reconsideration, the court, on grounds of sovereign immunity, dismissed Mr. Berry’s and Ms. Washington’s claims under § 1981 to the extent that ⁴⁶⁶ they sought any relief against the State agencies and any monetary relief against the State officials in their official capacities. The court disposed of the balance of those claims (against the State officials in their individual capacities) by entering summary judgment on September 6, 1990. The court concluded that Mr. Berry’s claim was barred by limitations and that Ms. Washington had failed to show an act of discrimination. This appeal followed, in which some but not all of the adverse decisions below are challenged.

Striking the Amended Complaint A predictable path for the litigation emerged early in its course. The defendants’ first response would be a motion to dismiss the complaint. If they lost that motion, or to the extent that they did, discovery would then take place, following which the defendants would attempt to prevail through a motion for summary judgment. If that was unsuccessful, the plaintiffs would try to certify one or both of the classes they purported to represent, and the case would proceed to trial.

Recognizing this.anticipated course, the court, on October 13, 1989, entered a Scheduling Order that set certain times, agreed to or acquiesced in by the parties, for the filing of these motions and responses, the commencement and completion of discovery, and for trial. The contemplated motion to dismiss was to be filed by October 25, 1989, the plaintiffs’ response was due by November 16, 1989, and a hearing on the motion was scheduled for December 11, 1989. Discovery was to commence no later than January 2, 1990 and be completed by April 16, 1990. Motions for summary judgment were due by May 1, 1990, responses 15 days later.

The motion for class certification was to be filed by February 16, 1990. Trial on the merits was scheduled for June 4, 1990, and the Order stated that “[a] determination will be made as soon as possible after the motion to dismiss as to whether this date should be postponed.” It was in fact postponed. ⁴⁶⁷ The dates set for the motion to dismiss were met. The court’s initial response to the motion, dismissing Counts I and III and most of the claims in Count II was through an order filed December 21, 1989. On January 12, 1990, counsel for the plaintiffs wrote to the court objecting to any change in the Scheduling Order with respect to discovery.

In that letter, she informed the court that the plaintiffs intended to file an amendment to the Complaint “within the next week.” That was not done, and so the defendants limited their discovery to the one surviving claim of the two remaining plaintiffs — Berry and Washington. On February 23, they filed interrogatories and a request for documents directed at those two plaintiffs. The proposed amended complaint was not filed until March 15, 1990. As we observed, it not only sought to resuscitate the claims of the 13 plaintiffs that were dismissed in December but also added two new plaintiffs, six new defendants, and a new cause of action.

In striking the amended complaint, the court noted: “By waiting so long, Plaintiffs effectively prevented the Defendants] from investigating the Amended Complaint or issuing new discovery requests, as the Scheduling Order required that all discovery be completed by April 16, 1990. In addition, the Amended Complaint thwarted the State’s ability to prepare for the motion for summary judgment which was contemplated by May 1, 1990. By allowing the Plaintiffs to file an amended complaint at this point in time, all of the enormous time and expense the parties and this Court have given to the Motion to Dismiss, Motion for Reconsideration, and now the Motion for Summary Judgment would be laid to waste. Further, it would make a mockery of the Scheduling Order, as Plaintiffs themselves recognize it would have to be totally revised to accommodate the Amended Complaint.” The court was also aware that the plaintiffs had had plenty of time to prepare their case and develop their facts.

Before this lawsuit was filed, the plaintiffs who had filed a nearly identical action against the defendants in Federal ⁴⁶⁸ court, had voluntarily dismissed the first and third claims of their complaint after a companion case was dismissed on the merits by the court. This is not a case, then, in which the plaintiffs were subjected to unduly stringent time requirements that they could not meet. As noted, they volunteered to the court that an amended complaint would be filed by January 19, 1990. Ignoring the thrust of the court’s reasoning — that if the amended complaint were allowed, the time and money that went into the discovery and the preparation for the motion for summary judgment would have been wasted — and asserting that its decision “was based primarily on the fact that permitting the amendment would require an alteration in the schedule provided for by the court’s scheduling order” — the plaintiffs complain that the court ignored the command that amendments be freely allowed and thus abused its discretion in striking the amended complaint.

We disagree. It is true, as plaintiffs allege, that Md.Rule 2-341(c) states that amendments to a pleading “shall be freely allowed when justice so permits,” but that has to be read in conjunction with Rule 2-504(c), which provides that a pretrial scheduling order “controls the subsequent course of the action but may be modified by the court to prevent manifest injustice.” The court’s action here was not taken in blind, arbitrary allegiance to its scheduling order, but rather to prevent what it regarded would be an injustice. The concern was not over the fact of the amendments but their timing. The plaintiffs were not precluded from amending their complaint; they were precluded from amending it nine weeks after they said it would be amended when, in the meantime, the defendants and the court were led into devoting their energies and resources into dealing with what remained of the initial complaint.

We find no abuse of discretion. See Eagle-Picher v. Balbos, 84 Md. App. 10, 25-34 , 578 A.2d 228 (1990), cert. granted, 322 Md. 737 , 589 A.2d 968 (1991). ⁴⁶⁹ Count I — Violation of § 1983 The thrust of Count I is that, by using the various techniques listed, the defendants excluded the plaintiffs from the opportunity to compete for and obtain better positions in State service. Preliminarily, we note several problems with the particular averments in that Count. For one thing, it is ambiguous with respect to whether the plaintiffs were actually eligible for the positions they claim went to other persons.

In complaining about the one technique of downgrading positions for recruitment, they allege that they were on lists of persons eligible for promotion to the positions at the original grade level, but neither that averment nor anything like it appears with respect to any of the other specific techniques of which they complain. In ¶ 57, they contend that the appointment of preferred and pre-selected persons “to State positions to which the Plaintiffs are entitled” (emphasis supplied) deprived them of due process and equal protection. Nowhere else in the Complaint do they aver an entitlement to any other position. In their brief, plaintiffs explain that they “do not contend that they have any absolute entitlement to promotions” but that they “do have a protectible interest in fair application of the promotion procedures.” We take it, then, that they are abandoning any suggestion that they were actually entitled to any position denied