                               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.
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 non-
movant. Robinson v. Clipse, 602 F.3d 605, 607 (4th Cir. 2010).



                                     2
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




                                             3
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.


                                             4
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


                                             5
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


                                         6
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


                                               7
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.




                                             8
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, non-

movants 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


                                                 9
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.


                                          10
       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)


                                            11
      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.




                                         12
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


                                             13
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


                                                14
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


                                            15
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


                                            16
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.




                                    17
