Brilliant Semenova v. MD Transit Administration , 845 F.3d 564 ( 2017 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-2125
BRILLIANT SEMENOVA,
Plaintiff - Appellant,
v.
MARYLAND TRANSIT ADMINISTRATION,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:14-cv-03413-JFM)
Argued: December 8, 2016 Decided: January 10, 2017
Before TRAXLER, FLOYD, and THACKER, Circuit Judges.
Reversed and remanded by published opinion. Judge Thacker wrote
the opinion, in which Judge Floyd joined. Judge Traxler wrote a
dissenting opinion.
ARGUED: Joel Robert Zuckerman, MAXWELL BARKE & ZUCKERMAN LLC,
Rockville, Maryland, for Appellant. Julie Theresa Sweeney,
OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland,
for Appellee. ON BRIEF: James S. Maxwell, MAXWELL BARKE &
ZUCKERMAN LLC, Rockville, Maryland, for Appellant. Brian E.
Frosh, Attorney General, Jennifer L. Katz, Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore,
Maryland, for Appellee.
THACKER, Circuit Judge:
Brilliant Semenova (“Appellant”) sued the Maryland
Transit Administration (“Appellee”) pursuant to the Americans
with Disabilities Act (“ADA”), alleging disability
discrimination in its provision of public services. The ADA
does not include a statute of limitations, so the district court
applied the two-year statute of limitations from Maryland’s
Anti-Discrimination Law (the “Maryland Law”) and dismissed the
suit as untimely. But because the Maryland Law does not contain
a cause of action for disability discrimination in the provision
of public services, the closer state-law analog to Appellant’s
claim is a general civil action, which is subject to a three-
year statute of limitations. Applying this more analogous
statute of limitations, we reverse and remand because the
complaint here alleges discrimination occurring within three
years of its filing.
I.
On October 30, 2014, Appellant filed a complaint in
the United States District Court for the District of Maryland
alleging Appellee violated Title II of the ADA in operating its
commuter bus service. 1 Appellant alleges that although she
1
Title II applies to public entities, including state and
local governments and their instrumentalities, see 42 U.S.C.
§ 12131(1), and prohibits disability discrimination in the
(Continued)
2
suffers from cerebral palsy and uses a walker or crutches, “[o]n
numerous occasions, beginning in or about October, 2011 . . .
and continuing through 2012,” bus operators refused to use an
assistance lift or otherwise assist her in boarding the bus.
J.A. 7. 2 Because she relied on the bus to attend classes at the
Community College of Baltimore County, Appellant alleges, this
discrimination forced her withdrawal from school “in the summer
of 2012.” Id. at 8.
Appellee moved to dismiss on timeliness grounds,
arguing that because the ADA does not provide a statute of
limitations, ADA claims brought in Maryland are subject to the
two-year statute of limitations found in the Maryland Law; and
the last alleged discriminatory act was over two years before
Appellant filed her complaint. Appellant responded that her
complaint was timely because Maryland’s three-year statute of
limitations for general civil actions applies to her claim.
In response, the district court issued a one-page
memo, containing only one paragraph explaining why it sided with
Appellee, and dismissed Appellant’s complaint. Without further
provision of public transportation services, see § 12132; 49
C.F.R. § 37.5.
2 Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
3
illumination, the district court acknowledged that the Maryland
Law “does not expressly apply to disability claims related to
public accommodations” but nevertheless concluded, “the Fourth
Circuit would find the two year limitations period [contained in
the Maryland Law] to be the one that should” apply to
Appellant’s claim. J.A. 36. In a separate order without
further reasoning, the district court dismissed the complaint as
untimely. This appeal followed.
II.
We review de novo dismissal pursuant to Federal Rule
of Civil Procedure 12(b)(6), assuming as true the complaint’s
factual allegations and construing “all reasonable inferences”
in favor of the plaintiff. Belmora LLC v. Bayer Consumer Care
AG, 819 F.3d 697, 702 (4th Cir. 2016) (internal quotation marks
omitted). A court may grant a 12(b)(6) motion on statute of
limitations grounds only “if the time bar is apparent on the
face of the complaint.” Dean v. Pilgrim’s Pride Corp., 395 F.3d
471, 474 (4th Cir. 2005).
III.
Because Title II of the ADA does not contain a statute
of limitations, federal courts “borrow the state statute of
limitations that applies to the most analogous state-law claim.”
A Soc’y Without A Name v. Virginia, 655 F.3d 342, 347 (4th Cir.
2011). Although “the most analogous statute need not be
4
identical,” state legislation containing a statute of
limitations will only control if it provides substantially “the
same rights and remedies” as the ADA. Wolsky v. Med. Coll. of
Hampton Roads, 1 F.3d 222, 224–25 (4th Cir. 1993). In A Society
Without A Name v. Virginia, for example, we considered the
applicable limitations period for ADA claims brought in
Virginia. See 655 F.3d at 347–48. We held that the one-year
statute of limitations in the Virginia Rights of Persons with
Disabilities Act applies, given the state law’s express
pronouncement that regulations promulgated pursuant to the
statute “shall be consistent, whenever applicable,” with the
ADA. Id. at 348 (quoting Va. Code. Ann. § 51.5–40).
Given the substantially similar language between the
ADA and the Rehabilitation Act, see A Soc’y Without A Name, 655
F.3d at 347, we have applied the same analysis to determine the
applicable statute of limitations for Rehabilitation Act claims.
Thus, in Wolsky v. Medical College of Hampton Roads, we held
that the statute of limitations in the Virginia Rights of
Persons with Disabilities Act also applies to Rehabilitation Act
claims brought in Virginia, instead of the more general statute
of limitations for personal injury claims. See 1 F.3d at 225.
We deemed the Virginia law an “exact state law counterpart” to
the Rehabilitation Act because it tracks the language of the
federal law, requires regulations promulgated pursuant to state
5
law to be consistent with the federal law, and affords the same
remedies as the federal law. Id. at 224–25.
Similarly, in McCulloch v. Branch Banking & Trust Co.,
we held that the 180-day statute of limitations in the North
Carolina Handicapped Persons Protection Act applies to
Rehabilitation Act claims brought in that state. See 35 F.3d
127, 132 (4th Cir. 1994). In so holding, we relied in part on
the statute’s prohibition of the same type of discrimination
alleged in the underlying complaint. See id. at 130.
Critically, however, the Maryland Law does not provide
Appellant “the same rights and remedies” as the ADA because it
does not provide a cause of action for disability discrimination
in the provision of public services. Wolsky, 1 F.3d at 224.
Rather, the closer state-law analog to such an ADA claim is
Maryland’s more general statute of limitations, requiring
plaintiffs to file civil actions “within three years from the
date it accrues unless another provision of the Code provides”
otherwise. Md. Code Ann., Cts. & Jud. Proc. § 5-101; see A
Soc’y Without A Name, 655 F.3d at 347.
In A Society Without A Name, Wolsky, and McCulloch, we
applied state statutes of limitations to federal claims, at
least in part, because the relevant state laws also allowed
claims for the same type of discrimination the plaintiffs
alleged pursuant to federal law. See N.C. Gen. Stat. Ann.
6
§§ 168A-5(a) (prohibiting disability employment discrimination),
-11 (creating “civil action to enforce rights granted or
protected by this chapter”); Va. Code. Ann. §§ 51.5-40,
(prohibiting disability discrimination in programs receiving
state funding), –46 (creating cause of action to enforce “the
rights set forth in this chapter”). In stark contrast to the
broad enforcement mechanisms these statutes include, the
Maryland Law only recognizes causes of action in limited
circumstances. See, e.g., Md. Code Ann., State Gov’t § 20–1035
(creating cause of action for disability housing
discrimination); § 20-1013 (creating cause of action for
disability employment discrimination). And although the
Maryland Law allows claims based on local anti-discrimination
laws in Howard, Montgomery, and Prince George’s Counties, which
prohibit discrimination in public accommodations, see § 20–1202;
Md., Howard Cty. Code § 12.210; Md., Montgomery Cty. Code,
§§ 27-10, -11; Md., Prince George’s Cty. Code §§ 2–186, 2–220,
we are not tasked with finding the closest local analog to
federal law, but the closest state analog. See A Soc’y Without
A Name, 655 F.3d at 347.
Further, the holding below was an outlier in the
District of Maryland, which has held time and again that ADA
claims are subject to Maryland’s three-year statute of
limitations governing general civil actions. See, e.g., Innes
7
v. Bd. of Regents of Univ. Sys. of Md., 29 F. Supp. 3d 566, 572
(D. Md. 2014); Schalk v. Associated Anesthesiology Practice, 316
F. Supp. 2d 244, 251 (D. Md. 2004); Ross v. Bd. of Educ. of
Prince George’s Cty., 195 F. Supp. 2d 730, 735 n.2 (D. Md.
2002); Speciner v. NationsBank, N.A., 215 F. Supp. 2d 622, 634
(D. Md. 2002); Kohler v. Shenasky, 914 F. Supp. 1206, 1211 (D.
Md. 1995). Although the District of Maryland decided most of
these cases before recent amendments to the Maryland Law that
created a cause of action for disability employment
discrimination, see H.B. 54, 2009 Leg., 426th Sess. (Md. 2009)
(codified as amended at Md. Code Ann., State Gov’t § 20–1035),
and expanded protections for persons with disabilities or
records of disability, see H.B. 393, 2009 Leg., 426th Leg., (Md.
2009) (codified as amended at §§ 20-601, -603, -606), those
amendments did nothing to modify the rights and remedies of a
plaintiff in Appellant’s shoes who alleges discrimination in the
provision of public services.
Thus, we hold that Appellant’s claim is subject to a
three-year statute of limitations. We need not decide whether
the complaint alleges discrimination occurring as Appellant
argues, “through [the end of] 2012,” or, as Appellee argues, no
later than the summer of 2012 when Appellant withdrew from
school. Because Appellant filed her complaint on October 30,
2014, either date would fall within the three-year filing
8
period. The district court thus erred by dismissing Appellant’s
claim as untimely.
IV.
For the foregoing reasons, we reverse the district
court’s dismissal and remand for further proceedings.
REVERSED AND REMANDED
9
TRAXLER, Circuit Judge:
I respectfully dissent. In my view the district court
correctly applied a two-year limitations period to Semenova’s
ADA claim, and I would affirm the district court’s dismissal of
her complaint.
Because Title II of the ADA 1 does not contain a statute of
limitations, courts “borrow the state statute of limitations
that applies to the most analogous state-law claim.” A Society
Without a Name v. Virginia, 655 F.3d 342, 347 (4th Cir. 2011).
The reason courts adopt the statute governing the most analogous
state-law cause of action is critical. The tradition “is based
on a congressional decision to defer to ‘the State’s judgment on
the proper balance between the policies of repose and the
substantive policies of enforcement embodied in the state cause
of action.’” Hardin v. Straub, 490 U.S. 536, 538 (1989)
(quoting Wilson v. Garcia, 471 U.S. 261, 271 (1985)).
In my view, the Maryland legislature has expressed its
judgment in very clear terms on the proper balance to be struck.
Maryland statutory law provides private causes of action for
many types of discrimination – including disability
1 See Americans with Disabilities Act of 1990, as
amended, 42 U.S.C. §§ 12131-12165.
10
discrimination. In each case, the legislature has provided that
the statute of limitations is two years. Indeed, claims made
under several such Maryland statutes are closely analogous to
Title II claims. See, e.g., Md. Code, State Gov’t §§ 20-705 –
20-707, 20-1035 (housing discrimination); Md. Code, State Gov’t
§§ 20-606, 20-1009, 20-1013 (employment discrimination). Most
analogous, in my view, however, are claims under § 20-1202 of
Maryland’s State Government Code. That statute provides for
private causes of action “for damages, injunctive relief, or
other civil relief” for violations of the anti-discrimination
laws of Howard, Montgomery, and Prince George’s Counties, each
of which prohibit discrimination – including disability
discrimination – in places of public accommodation, see Howard
Cty. Code § 12.210; Mont. Cty. Code §§ 27-10, 27-11; Prince
George’s Cty. Code §§ 2-186, 2-220. The decision of the
Maryland legislature that a two-year statute of limitations
applies to such state-law actions leaves no doubt concerning
what balance the Maryland legislature would strike regarding the
appropriate limitations period for Title II actions. 2
2 At oral argument, Semenova maintained that a cause of
action under § 20-1202 could not possibly be the most analogous
state-law cause of action because a § 20-1202 action must be
based on the violation of county discrimination law. But it is
hard to understand Semenova’s point. Section 20-1202 is a
Maryland statute creating a Maryland cause of action aimed at
providing redress for victims of disability discrimination that
(Continued)
11
Semenova has not identified any difference between § 20-
1202 claims and Title II claims that that would give us any
reason to doubt that the Maryland legislature’s judgment
regarding the proper limitations period for § 20-1202 claims
would apply just as well to Title II actions. Indeed,
Semenova’s only argument that § 20-1202 is not the most
analogous cause of action is that the facts alleged in her
complaint would not state a claim under § 20-1202, because the
discrimination she alleged did not occur in one of the three
counties to which § 20-1202 applies. 3 But this argument
misunderstands the role that § 20-1202 plays in our analysis.
The similarity of a § 20-1202 cause of action to one brought
under Title II matters because of what it reveals about the
Maryland legislature’s judgment concerning the balance it
favored regarding considerations of repose; it has nothing to do
would not otherwise be available. See Edwards Sys. Tech. v.
Corbin, 841 A.2d 845, 857-58 (Md. 2004) (regarding statutory
predecessor to § 20-1202). And it was the Maryland state
legislature that decided that a two-year limitations period
would apply to such actions. See Md. Code, State Gov’t § 20-
1202(c)(1).
3 Maryland statutory law prohibits public-accommodations
disability discrimination throughout the state, see Md. Code,
State Gov’t § 20-304, but does not provide for a private right
of action for violation of this statewide ban.
12
with the question of whether Semenova herself could have brought
a § 20-1202 claim.
Furthermore, regarding the determination of the appropriate
limitations period, it is unlikely Congress would have
sanctioned a construction of the ADA under which the length of
the statute of limitations would depend upon “an analysis of the
particular facts of each claim,” as such an approach would
“inevitably breed[] uncertainty and time-consuming litigation.”
Wilson, 471 U.S. at 272; see id. at 272-75. Rather, “[t]he
federal interests in uniformity, certainty, and the minimization
of unnecessary litigation all support the conclusion that
Congress favored” a less fact-specific approach. Id. at 275.
Semenova argues that despite the obvious close similarities
between Title II claims and those made under § 20-1202, the
three-year statute governing general civil actions, § 5-101 of
the Maryland Courts and Judicial Proceedings Code, actually
provides a closer analogue. But we rejected a very similar
argument in McCullough v. Branch Banking & Trust Co., 35 F.3d
127 (4th Cir. 1994). In that case, the plaintiff brought suit
against his employer claiming that he was terminated because of
his handicap in violation of § 504 of the Rehabilitation Act.
See McCullough, 35 F.3d at 128. Like the ADA, the
Rehabilitation Act provides no statute of limitations; thus, we
were required to decide which state limitations period applied.
13
See id. at 129. The employer favored the 180-day period
applicable to claims under the North Carolina Handicapped
Persons Protection Act (the “North Carolina Act”). See id. The
plaintiff, on the other hand, preferred the three-year period
generally applicable to wrongful-discharge actions. See id. at
131.
We agreed with the employer. See id. at 130-32. In so
doing, we acknowledged that, for several reasons, the North
Carolina Act was by no means a perfect analogue: (1) the North
Carolina Act provides for a bench trial while the Rehabilitation
allows for jury trials; (2) while the Rehabilitation Act allows
for full compensatory and punitive damages, the North Carolina
Act allows only injunctive relief and back pay; (3) the
Rehabilitation Act, unlike the North Carolina Act, does not
extend or base coverage upon receipt of state assistance; and
(4) the Rehabilitation Act, unlike the North Carolina Act, does
not require the employee to notify the employer of his or her
disability and to make accommodation suggestions and cooperate
in evaluating possible accommodations. See id. at 131.
Nevertheless, we rejected the plaintiff’s argument that
these distinctions kept the North Carolina Act from being the
most closely analogous, explaining:
[Plaintiff’s identification of the distinctions
between the Rehabilitation Act and the North Carolina
Act] begs the question of which North Carolina statute
14
is most analogous to the Rehabilitation Act. The
differences between the North Carolina Act and the
Rehabilitation Act identified by McCullough do not, by
themselves, magically tip the balance of similarities
so as to make the general wrongful discharge provision
more analogous to the Rehabilitation Act than the
specific provisions of the North Carolina Act. It
simply means that, in North Carolina, there is no
perfect counterpart to the Rehabilitation Act, and we
must determine which statute is more appropriate.
Id. at 132 (emphasis added). In the end, we held that, despite
the differences the plaintiff had identified, the North Carolina
Act was a better fit than the general wrongful-discharge statute
because the North Carolina Act and the Rehabilitation Act both
“redress discrimination against the same very specific group of
persons,” whereas “the general wrongful discharge statute
protects against a wide range of discrimination which, although
including persons with disabilities, also encompasses many other
classes of individuals.” Id.; see also Wolsky v. Medical Coll.
Of Hampton Roads, 1 F.3d 222, 225 (4th Cir. 1993) (“[The Supreme
Court] acknowledged that minor differences between state and
federal statutes are acceptable and the most analogous statute
need not be identical.”).
Similar reasons dictate that § 20-1202 claims are the
closest analogue to claims brought under Title II. 4 It seems
4 We have borrowed statutes of limitation from state-law
anti-discrimination statutes in other cases brought under the
ADA and Rehabilitation Act. See A Society Without a Name v.
Virginia, 655 F.3d 342, 348 (4th Cir. 2011) (holding one-year
(Continued)
15
fairly plain to me that a statute creating a private right of
action for illegal discrimination is a closer fit than a catch-
all statute governing all sorts of civil actions. And, the
difference Semenova identifies between causes of action under
§ 20-1202 and those under Title II of the ADA – that § 20-1202
applies in only certain subdivisions of the relevant
jurisdiction – is much less significant from the standpoint of
applying the Maryland legislature’s limitations-period judgment
than were the differences we considered in McCullough.
Notwithstanding the fact that § 20-1202 applies only to three
counties, the critical fact remains that victims of
discrimination in those counties have a state-law cause of
action under § 20-1202 that closely resembles a Title II claim,
and the Maryland legislature has decided that a two-year
limitations period applies to such actions. I believe that is
the legislative judgment that should control here.
limitations period set forth in Virginia Rights of Persons with
Disabilities Act applies to Title II claims brought in
Virginia); Wolsky v. Medical Coll. Of Hampton Roads, 1 F.3d 222,
224-25 (4th Cir. 1993) (holding same limitations period applies
to Rehabilitation Act claims brought in Virginia).
16
For all of the foregoing reasons, I respectfully dissent. 5
5 I would conclude, for the reasons explained in
McCullough, that the two-year statute of limitations is
consistent with the federal policies underlying the ADA. See
McCullough v. Branch Banking & Trust Co., 35 F.3d 127, 131 (4th
Cir. 1994). And I agree with the district court’s conclusion
that Semenova’s action is time-barred, assuming that a two-year
limitations period applies.
17