PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-1215

MARIE M. MCCRAY,

Plaintiff - Appellant,

v.

MARYLAND DEPARTMENT OF TRANSPORTATION, Maryland Transit 

Administration,

Defendant - Appellee.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. Ellen L. Hollander, District Judge. 

(1:11-cv-03732-ELH)

Argued: December 10, 2013 Decided: January 30, 2014

Before KING, GREGORY, and FLOYD, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published 

opinion. Judge Gregory wrote the opinion, in which Judge King

and Judge Floyd joined.

ARGUED: John Henry Morris, Jr., LAW OFFICE OF JOHN H. MORRIS, 

JR., Baltimore, Maryland, for Appellant. Jennifer L. Katz, 

OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, 

for Appellee. ON BRIEF: Douglas F. Gansler, Attorney General 

of Maryland, Eric S. Hartwig, Assistant Attorney General, OFFICE 

OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for 

Appellee.
2

GREGORY, Circuit Judge:

Appellant Marie McCray worked for the Maryland Transit 

Administration (“MTA”), a subsidiary of the Maryland Department 

of Transportation (“MDOT”), for nearly four decades before her 

position was terminated because of budget cuts. McCray brought 

this action in federal district court alleging various forms of 

discrimination. The district court dismissed McCray’s suit on 

legislative immunity grounds before any meaningful discovery 

could be conducted. We find that McCray’s complaint alleges 

discriminatory conduct that occurred before any legislative 

activity. Because McCray’s case was dismissed before she had 

the opportunity to discover evidence necessary to her claims, we 

conclude that this dismissal was premature under Rule 56(d) of 

the Federal Rules of Civil Procedure. However, we find that 

McCray’s age discrimination and disability discrimination claims 

are barred by sovereign immunity. We affirm in part, vacate in 

part, and remand.

I.

Marie McCray began working for the Maryland Transit 

Authority, a precursor of the MTA, in 1971.1 Her principal duty 

 1 Because this is an appeal from a summary judgment order, 

we present the facts in the light most favorable to the nonmovant. Robinson v. Clipse, 602 F.3d 605, 607 (4th Cir. 2010).
3

was to assemble an annual rider usage report for trains and 

buses. For three decades, she worked without incident and 

received no complaints from supervisors.

McCray was diagnosed with diabetes in 1995, but the illness

had no effect on her job performance until 2007. In June of 

that year, co-workers discovered her after she fainted on the 

floor near her desk. She was taken to the hospital in an 

ambulance and treated for low blood sugar. She was discharged 

the same day and returned to work one week later.

After the incident, McCray’s supervisor hectored her about 

her fitness and questioned her ability to work. It is this 

supervisor, Michael Deets, whose behavior is the core of 

McCray’s claims. Deets confronted McCray ceaselessly, even 

after she provided written documentation from her doctors 

establishing her medical fitness. Eventually, Deets and a human 

resources official demanded that McCray submit to an independent 

medical examination. This independent doctor confirmed what 

McCray’s doctors found: the diabetes would have no impact on 

her work. Nonetheless, Deets continued to plague McCray with 

questions about her health.

In January of 2008, McCray’s principal job—the annual usage 

report—was transferred to a consultant, and McCray was left 

without significant work. Other employees in her unit were
4

overwhelmed with work, but when McCray requested more 

responsibilities, she was denied.

In October of 2008, McCray was summoned to a meeting with 

Deets, who informed her that her position was abolished as part 

of a series of budget cuts in Maryland. In 2008, the Governor

and Board of Public Works cut roughly 830 state positions to 

meet a budget shortfall.

McCray filed a claim with the United States Equal 

Employment Opportunity Commission (“EEOC”), alleging 

discrimination under Title I of the Americans With Disabilities 

Act (“ADA”), 42 U.S.C. §§ 12101–12113, the Age Discrimination in 

Employment Act (“ADEA”), 29 U.S.C. §§ 621–634, and Title VII of 

the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et 

seq. She alleged that her position was cut because of 

discriminatory animus due to her race, gender, age, and 

disability.

Before any meaningful discovery was conducted, the MTA and 

MDOT filed a motion to dismiss. The agencies argued that 

because McCray’s position was cut pursuant to a state budget 

decision, legislative immunity blocked the lawsuit. At this 

point, McCray had not had an opportunity to gather information 

that was integral to her case. She had no evidence about how 

different positions were chosen for elimination, or on how many 

individuals with disabilities were employed by the MDOT or MTA.
5

As such, she moved under Rule 56(d) of the Federal Rules of 

Civil Procedure for more time to conduct discovery.

The district court converted the MDOT and MTA’s motion into 

a motion for summary judgment and then dismissed McCray’s 

claims. The court found that because her position was 

terminated pursuant to budget cuts, any lawsuit based on that 

termination was blocked by legislative immunity. Further, any 

discovery that McCray would conduct would be immaterial to the 

legislative immunity issue. “Because [McCray’s] proposed 

discovery relates to the motives of individual employees within 

the MTA and the MDOT,” the district court reasoned, “McCray has 

not identified any factual issue pertinent to . . . legislative 

immunity” that remained in dispute. J.A. 110. As such, the 

court also denied McCray’s 56(d) motion. McCray filed a timely 

appeal, and we have jurisdiction under 28 U.S.C. § 1291.

II.

The MDOT and MTA argue that sovereign immunity bars 

McCray’s age and disability discrimination claims. This 

argument is correct. “[A]n unconsenting State is immune from 

suits brought in federal courts by her own citizens.” Edelman 

v. Jordan, 415 U.S. 651 (1974). This protection extends to 

state agencies. See Regents of Univ. of Cal. v. Doe, 519 U.S. 

425, 429 (1997). Therefore, absent abrogation of sovereign 
6

immunity or consent from Maryland, McCray cannot seek injunctive 

or monetary relief from the MDOT or MTA. See Bd. of Trs. of the 

Univ. of Ala. v. Garrett, 531 U.S. 356, 363–64 (2001).

Sovereign immunity has not been abrogated for ADEA claims and 

ADA Title I claims. See id. at 374 (ADA Title I claims); Kimel 

v. Fla Bd. of Regents, 528 U.S. 62 (2000) (ADEA claims); cf.

Constantine v. Rectors & Visitors of George Mason Univ., 411 

F.3d 474, 489–90 (recognizing abrogation of sovereign immunity 

for Title II claims but not Title I claims). Thus, absent 

waiver of sovereign immunity, McCray’s ADEA and ADA claims must 

be dismissed.

The MDOT and MTA raise their sovereign immunity argument 

for the first time on appeal. McCray argues that the MDOT and 

MTA waived this argument. We disagree. Our case law is clear 

that “because of its jurisdictional nature, a court ought to 

consider the issue of Eleventh Amendment immunity at any time, 

even sua sponte.” Suarez Corp. Indus. v. McGraw, 125 F.3d 222, 

227 (4th Cir. 1997). The Supreme Court has allowed sovereign 

immunity to be claimed for the first time before a Court of 

Appeals. Edelman, 415 U.S. at 677–78 (“[T]he Eleventh Amendment 

defense sufficiently partakes of the nature of a jurisdictional 

bar so that it need not be raised in the trial court.”). There 

are limits to how long a state may wait before claiming 

immunity. For example, if a state loses a case on the merits 
7

after extensive discovery has taken place, it is inappropriate 

for the state to then claim sovereign immunity. Ku v. 

Tennessee, 322 F.3d 431, 435 (6th Cir. 2003). As stressed by 

McCray, however, this case has not advanced to the discovery 

stage. Given the preliminary stage of the case, it is not too

late for the MDOT and MTA to raise their sovereign immunity 

defense, even though it is raised before us for the first time. 

Thus, we affirm the district court’s rulings on McCray’s ADEA 

and ADA claims, albeit based on sovereign immunity, not 

legislative immunity.

III.

For McCray’s remaining Title VII claim, the key question is 

whether the district court erred in dismissing McCray’s action

before she could conduct discovery. In general, summary 

judgment should only be granted “after adequate time for 

discovery.” See Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). Summary judgment before discovery forces the non-moving 

party into a fencing match without a sword or mask. For this 

reason, when a party lacks material facts necessary to combat a 

summary judgment motion, she may file an “affidavit or 

declaration that, for specified reasons, [the party] cannot 

present facts essential to justify its opposition.” Fed. R. 

Civ. P. 56(d). In response, the district court may defer 
8

consideration of the summary judgment motion, deny the motion, 

or “issue any other appropriate order.” Id.

We review a district court’s 56(d) ruling for abuse of 

discretion. Harrods Ltd. v. Sixty Internet Domain Names, 302 

F.3d 214, 244 (4th Cir. 2002). A Rule 56(d) motion must be 

granted “where the nonmoving party has not had the opportunity 

to discover information that is essential to his opposition.” 

Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 

n.5 (1986)). Further, such motions are “broadly favored and 

should be liberally granted” in order to protect non-moving 

parties from premature summary judgment motions. Greater Balt. 

Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of 

Balt., 721 F.3d 264, 281 (4th Cir. 2013) (quoting Raby v. 

Livingston, 600 F.3d 552, 561 (5th Cir. 2010)).2

Absent the legislative immunity consideration, McCray’s 

56(d) motion succeeds with ease. At the time of the summary 

judgment motion, McCray had not had the opportunity to depose 

supervisors at the MDOT and MTA. She had no information on how 

positions were chosen for termination or why other positions 

were kept. Without such information, it would be impossible for 

her to make an argument that she was fired because of 

 2 The language of Rule 56(d) appeared in Rule 56(f) before 

amendments in 2010, but these amendments made no substantial 

change to the rule. Id. at 375 n.6.
9

discriminatory reasons. As we have emphasized, 56(d) motions 

for more time to conduct discovery are proper in cases such as 

this one, where the main issue is one of motive and where most 

of the key evidence lies in the control of the moving party.

See Harrods, 302 F.3d at 246–47 (citing Illinois State Employees 

Union v. Lewis, 473 F.2d 561, 565–66 (7th Cir. 1972)). Again, 

evidence of how defendants selected McCray’s position (and other 

positions) for termination go to the crux of McCray’s race

discrimination claims. Absent discovery, she has no adequate 

access to this evidence, and therefore no way to shield herself 

from a premature summary judgment motion.

Further, many factors counseling against granting a 56(d) 

motion are absent here. Non-movants must generally file an 

affidavit or declaration before they can succeed on a 56(d) 

motion, or if not, non-movants must put the district court on 

notice as to which specific facts are yet to be discovered.

Nader v. Blair, 549 F.3d 953, 961 (4th Cir. 2008). In this 

case, McCray filed such a declaration and identified the 

material she needed to discover. J.A. 93–95. Similarly, nonmovants do not qualify for Rule 56(d) protection where they had 

the opportunity to discover evidence but chose not to. Harrods, 

302 F.3d at 246 (noting that non-movant was entitled to 56(d) 

protection in part because it “was not dilatory in pursuing 

discovery”). There is no indication that McCray’s inability to 
10

gather evidence was due to her own delay. In sum, if we set the 

legislative immunity argument aside, this case is an easy one:

McCray’s 56(d) motion should be granted.

However, as the district court noted, legislative immunity 

complicates the issue because the evidence that McCray has yet 

to discover “is not material to whether defendants are entitled 

to legislative immunity.” J.A. 110. This assertion is correct, 

but we nonetheless vacate, because McCray’s complaint alleges 

discriminatory actions that occurred well before any legislative 

activity. For this reason, this behavior cannot be protected by 

legislative immunity, so the Rule 56(d) denial was premature.

A legislative immunity finding is a legal determination 

that we review de novo. Kensington Volunteer Fire v. Montgomery 

Cnty., 684 F.3d 462, 470–71 (4th Cir. 2012). Legislative 

immunity protects those engaged in legislative functions against 

the pressures of litigation and the liability that may result.

See E.E.O.C. v. Wash. Suburban Sanitary Comm’n, 631 F.3d 174, 

181 (4th Cir. 2011) [hereinafter Washington Suburban]. “The 

practical import” of legislative immunity “is difficult to 

overstate.” Id. It prevents those who were defeated in 

elections from waging political war through litigation. Id. It 

promotes a healthier, more thriving class of politicians by 

ensuring that legislative offices are not limited only to those 

individuals who are willing to withstand a lawsuit. Id.
11

The protections of legislative immunity extend beyond 

legislators themselves. Bogan v. Scott-Harris, 523 U.S. 44, 49, 

55 (1998). The determination of legislative immunity is based 

on the function being fulfilled—not the title of the actor 

claiming immunity. Kensington, 684 F.3d at 470. Actions that 

qualify as legislative “typically involve the adoption of 

prospective . . . rules that establish a general policy 

affecting the larger population. They also generally bear the 

outward marks of public decisionmaking.” Washington Suburban, 

631 F.3d at 184 (internal quotations marks, citations and 

alteration omitted). Accordingly, this Court has had “no 

trouble concluding that enacting a budget is a legislative act.”

See Kensington, 684 F.3d at 471. Also relevant to this case, 

the Supreme Court has noted that “the termination of a position 

. . . unlike the hiring or firing of a particular employee, may 

have prospective implications” and is therefore more likely to 

be legislative. Bogan, 513 U.S. at 56. In this case, both 

parties accept that McCray’s position was terminated due to 

budget-making.3

 3 The government action in this case was carried out by the 

Governor and Board of Public Works—not the legislature. By 

statute, Maryland law allows for limited budget cuts by action 

of the Governor and Board of Public works. Md. Code Ann., State 

Fin. & Proc. § 7-213(a). The Maryland constitution gives the 

governor a central role in cutting the budget when revenue falls 

short. Judy v. Schaefer, 627 A.2d 1039, 1049 (Md. 1993). One 

(Continued)
12

Finally, and most helpful to the MDOT and MTA, our case law 

shows that legislative immunity extends to those individuals who 

advise legislators. Kensington, 684 F.3d at 471; Baker v. Mayor 

& City Council of Balt., 894 F.2d 697, (4th Cir. 1990) (applying 

legislative immunity to a government department that recommended 

that a position be cut pursuant to a mayor’s request), overruled 

on other grounds by Berkley v. Common Council of the City of 

Charleston, 63 F.3d 295, 303 (4th Cir. 1995); see also Baraka v. 

McGreevey, 481 F.3d 187, 196–97 (3d Cir. 2007) (holding that 

governor’s appointee’s actions in “advising and counseling 

Governor McGreevey and the Legislature are also legislative” and 

protected under legislative immunity). This case law stands for 

the proposition that just as a legislator is immune from 

discrimination lawsuits when she makes budget decisions based on 

improper animus, aides to that legislator are also immune. 

Legislative immunity is a shield that protects despicable 

motives as much as it protects pure ones. For this reason, the 

district court’s conclusion is correct insofar as it shields the 

 

could argue that the budget cuts were therefore executive in 

nature, not legislative. We need not decide this thorny 

question, however, because our holding that the Rule 56(d) 

motion should have been granted rests on our finding that 

McCray’s lawsuit targets discrimination that occurred before any 

legislative activity occurred.
13

MTA and MDOT from lawsuit based on the counsel they gave 

executive officials in Maryland who carried out the budget cuts.

Nonetheless, we vacate and remand because the complaint 

alleges discriminatory actions that took place before the 

legislative activity began. Our ruling in Washington Suburban

guides our decision today. In that case, former municipal 

employees brought an age discrimination claim with the EEOC

against a local government agency, the Washington Suburban 

Sanitation Commission (“WSSC”). Washington Suburban, 631 F.3d 

at 177. In late 2005, the WSSC’s Chief Information Officer 

conducted an assessment of the Information Technology department 

and concluded that it should be restructured, with several 

positions eliminated. Id. The restructuring required an 

increased budget, so WSSC executives met in 2006 and agreed to 

submit the new proposed budget to local legislators. Id. These 

legislators met to discuss the budget and sought advice from 

WSSC executives. Id. The legislators ultimately reached no 

decision on the proposal, which allowed the restructuring to go 

into effect by operation of law. Id.

The EEOC investigated the WSSC and requested information 

about how the Chief Information Officer selected positions for 

termination. This Court allowed the subpoena to be enforced.

Id. at 185. Part of the basis for our decision was that the 

EEOC’s investigation was aimed at discriminatory actions taken 
14

prior to and after the restructuring. Id. at 183. “In 

particular, the EEOC can continue with its stated current 

investigatory goals—determining whether WSSC discriminated in 

distributing training prior to the restructuring and whether it 

discriminated in hiring after the restructuring.” Id.

Inquiries into how the WSSC developed its budget would be 

problematic, as would inquiries into the legislators’ 

deliberations on the proposal, because these actions were 

legislative ones that were protected by legislative immunity.

Id. at 183–84. We upheld the subpoena, however, because the 

investigation was aimed at discriminatory behavior prior to and 

after these legislative actions.

As in Washington Suburban, McCray alleges discriminatory 

behavior that occurred before any legislative action took place. 

Per her complaint, her supervisor at the MTA stripped her of 

responsibilities in the years leading up to budget cuts. Even 

though her department was overwhelmed with work, her supervisor 

refused to give McCray additional responsibilities, even after

she asked for more work. Thus, by the time of the 2008 budget 

crisis which led to the termination of McCray’s position, Deets’ 

actions had already made McCray vulnerable and therefore 

adversely affected her. McCray alleges her termination was a 

foregone conclusion because her supervisor—driven by 

discriminatory animus—stripped her of her duties. Had the 
15

legislature simply terminated McCray’s position, that action 

would be shielded by legislative immunity. Similarly, if 

McCray’s supervisors advised the legislature to terminate her 

position because of discriminatory animus, this too would be 

protected by legislative immunity. In this case, however, 

McCray’s allegation is that she was subject to discriminatory 

adverse employment actions that made her position vulnerable to 

the budget cuts that eventually came, and she alleges that these 

actions were taken before any legislative activity. See Crady 

v. Liberty Nat. Bank & Trust Co. of Ind., 993 F.2d 132, 136 (7th 

Cir. 1993) (defining a tangible employment action for ADEA

purposes as including an employer giving an employee 

“significantly diminished material responsibilities”) (cited 

with approval in Burlington Indus, Inc. v. Ellerth, 524 U.S. 

742, 761 (1998)). Put another way, the basis of McCray’s 

lawsuit is not the financial storm that rocked the state and 

forced Maryland’s government to scale back its budget. Rather, 

her claim is that the MTA and MDOT gave her a lightning rod to 

hold and sent her to the roof.

This case presents a more difficult situation than 

Washington Suburban, which involved a subpoena during an initial 

investigation, rather than a lawsuit. We explicitly noted this 

distinction in Washington Suburban. “The threat to legislative 

immunity and privilege in [full-blown lawsuits] is more acute 
16

than it is here.” Washington Suburban, 631 F.3d at 182–83.

However, the importance of this point in Washington Suburban

lends support to our ruling here. We drew attention to the 

early stage of the proceedings in that case because it was 

unclear whether the investigation would ever ripen into a case 

threatening legislative immunity. Id. at 183 (“We also cannot 

assume the EEOC’s investigation will follow the path WSSC 

projects.”). In other words, a legislative immunity holding is 

premature if the case might evolve in a way that poses no threat 

to legislators. McCray’s case is far past the investigatory 

stage, but it focuses on behavior occurring before any 

legislative action. Thus, while the case here has advanced 

beyond the stage considered in Washington Suburban, the cases 

are similar because McCray’s lawsuit has not yet implicated 

legislative immunity and need not develop in a way that would 

pose a threat to legislators.

In sum, we conclude that the Rule 56(d) motion should have 

been granted because McCray’s lawsuit is aimed at discrimination 

that occurred before any legislative activity began. This is 

crucial to our 56(d) holding, because if legislative immunity 

were to apply, then the discovery that McCray requests would be 

irrelevant: her lawsuit would be barred regardless of whether 

the MDOT and MTA helped terminate her position because of 

discriminatory animus. However, because McCray’s lawsuit 
17

alleges discrimination occurring before any legislative 

activity, the summary judgment dismissal was premature.

IV.

Because summary judgment was granted before Appellant had a 

chance to discover facts essential to her claim, and she alleged 

discrimination occurring before any legislative activity, the 

district court’s Rule 56(d) denial was an abuse of discretion.

However, we find that the district court’s dismissal of McCray’s 

ADA and ADEA claims are supported by sovereign immunity.

Accordingly, this case is

AFFIRMED IN PART,

VACATED IN PART,

AND REMANDED.