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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND SUE ANN WEST v. CSX CORPORATION * * * Civil No. JFM-05-3256 * Exempt from ECF * ***** MEMORANDUM In this action brought against CSX Corporation ("CSX"), plaintiff asserts three claims: (1) for disability discrimination under Article 4 of the Baltimore City Code; (2) for disability discrimination under the Americans With Disabilities Act ("ADA"); and (3) for retaliation under the ADA.1 CSX has filed a motion to dismiss all three claims. Plaintiff, appearing pro se, has responded to the motion. The motion will be granted.2 I. Article 4 of the Baltimore City Code does not expressly create a private right of action. If it did so, it would be in violation of the Maryland constitution. The Maryland Court of Appeals has long since made clear that Baltimore City has the power to legislate "only in respect to such subjects as are delegated to it in the legislative grant of powers." State v. Stewart, 152 Md. 419, 422, 137 A. 39, 41 (1927).

The three claims are asserted in an amended complaint. Plaintiff has filed a motion for leave to file a second amended complaint. CSX is correct when it contends in opposition to the motion that the second amended complaint adds nothing of substance. However, in order to avoid an unnecessary procedural issue, I will grant Plaintiff's motion to amend. In light of the fact that I am granting CSX's motion on other grounds, I do not reach its argument that plaintiff's ADA claims against it should be dismissed because it was not named as a respondent in plaintiff's administrative charge.
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II. A claim of disability discrimination under the ADA requires an employment relationship between the parties. See McGuiness v. University of New Mexico School of Medicine, 170 F.3d 974, 979 (10th Cir. 1998).3 Here, plaintiff was not employed by CSX but by one of its subsidiaries, Chessie Computer Services, Inc. There are situations in which a parent corporation may be deemed to be the employer of a subsidiary's employees. However, in order for this rule to apply, the parent must exercise "excessive control" over the subsidiary, as evidenced by either (1) day-to-day supervision and control of the employment practices of the subsidiary, or (2) the parent's disregard of the corporate entities through co-mingled funds, undercapitalization of the subsidiary, or the use of the same work force and business offices. Johnson v. Flowers Industries, Inc., 814 F.2d 978, 981 (4th Cir. 1987). Here, plaintiff has pointed to nothing that would establish either of these conditions. The mere fact that CSX has promulgated standards for all of its subsidiaries concerning individuals with disabilities, harassment, corporate ethics and work place violence does not establish that CSX supervised and controlled the employment practices of a subsidiary. Likewise, the mere fact that certain benefits of employees of CSX subsidiaries were administered through the parent corporation does not establish day-to-day control. As reflected in the fact that plaintiff named Chessie Computer Services, Inc. in the charge she filed with the EEOC, she has been fully aware that Chessie Computer, not CSX, was her employer. Thus, there is no inequity in dismissing her complaint against CSX.

CSX has not moved to dismiss plaintiff's claim for retaliation under the ADA because the non-retaliation provision of the ADA, 42 U.S.C.

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Maryland Law