110 S.W.3d 11 (2002)
In re Larry ELWELL.
No. 10-02-213-CV.
Court of Appeals of Texas, Waco.
August 7, 2002.
Larry Elwell, Joshua, pro se.
Roger Harmon, County Judge for Johnson County, Respondent, Pro se.
Bill Moore, Johnson County Attorney, Jim B. Simpson, Jason D. Tomlin, Johnson County Asst. Co. Attys., Cleburne, for Respondent.
Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.

OPINION
BILL VANCE, Justice.
In this original proceeding, Relator Larry Elwell seeks to compel County Judge Roger Harmon of Johnson County, Texas, the Respondent, to certify him as an Independent Candidate in the November General Election for the office of County *12 Judge of Johnson County. Tex. Elec.Code Ann. § 142.010 (Vernon 2002). Relator tendered an "Independent Candidate's Application for a Place on the General Election Ballot" to Respondent. Respondent found that the application did not comply with the applicable provisions of the Election Code and notified Relator that his name would not appear on the November ballot. Relator seeks relief by way of mandamus, which we have authority to issue. Id. § 273.061-.063 (Vernon 2002). After requesting a response and hearing oral argument, we believe that Relator is entitled to the relief he has requested. Because this dispute involves an election in progress, we will try to set forth the essential facts and our reasons as briefly as possible.

Facts
Relator filed a Declaration of Intent to be an Independent Candidate with Respondent, who acknowledged the filing by letter. Id. § 142.001 (Vernon 1986). With the letter, Respondent sent a package of information, including a copy of a Memorandum he had received from the Secretary of State of Texas outlining generally the steps a potential independent candidate must take to appear on the November ballot. That memo includes the statement: "... the independent candidates must also file an application, together with a petition, no later than 5:00 p.m. on May 9, 2002." Respondent's letter also refers to an application and a petition.
At approximately 4:00 p.m. on May 9, Relator delivered a folder to Sandy Sims in Respondent's office, which he believed contained all the necessary documents for Respondent to certify his name as an independent candidate for the office of County Judge.[1] After Elwell left, Sims checked the contents of the folder and discovered that, although it contained the necessary petition signed by the requisite number of qualified voters in the county, no application form was included. Id. § 142.004(a), (b) (Vernon 1986) (application required, accompanied by a petition); Id. § 141.062 (Vernon 1986) (requisites of a petition).
Shortly thereafter, Sims placed a telephone call to Relator at the number he had provided on his Declaration form. Finding Relator unavailable, she advised the person answering the phone that an application was not included in the folder and that the deadline for filing was 5:00 p.m. that day. Elwell, who had left for Fort Worth before Sims called, was informed by his wife of the missing application, and he returned to Johnson County. At approximately 4:20 p.m., Alden Nellis, a friend of Relator, went to Respondent's office and picked up a blank application form. Sims left the office at 4:30.
Relator acknowledges that he did not arrive at Respondent's office at the Johnson County Courthouse until approximately 5:20 p.m. on May 9 and, finding it closed, did not file his application with Respondent until sometime between 8:15 a.m. and 8:45 a.m. on May 10. Respondent rejected his candidacy on the basis that his application was not filed before the deadline of 5:00 p.m. on May 9. Id. § 142.006 (Vernon Supp.2002).

"Strict Compliance" or "Just and Reasonable Result"?
Before we begin our discussion, we take note of the difference in the approach taken by the courts of appeals, including this *13 court in In re Gibson, and that taken by the Texas Supreme Court, when presented with questions about access to the ballot by potential candidates. The courts of appeals generally speak in terms of "mandatory statutes," strict interpretation of those statutes, and "strict compliance" with statutes by candidates. E.g., In re Triantaphyllis, 68 S.W.3d 861, 868 (Tex. App.-Houston [14th Dist.] 2002, orig. proceeding); see In re Gibson, 960 S.W.2d 418, 421 (Tex.App.-Waco 1998, orig. proceeding); Escobar v. Sutherland, 917 S.W.2d 399, 404 (Tex.App.-El Paso 1996, orig. proceeding); Hoot v. Brewer, 640 S.W.2d 758, 761 (Tex.App.-Houston [1st Dist.] 1982, orig. proceeding). On the other hand, the Supreme Court has recently spoken of construing laws "broadly in favor of eligibility of interest in access to the ballot." Davis v. Taylor, 930 S.W.2d 581, 583 (Tex.1996) (orig.proceeding) (citing Pilcher v. Rains, 853 F.2d 334, 336 (5th Cir.1988)); but see Wallace v. Howell, 707 S.W.2d 876, 877 (Tex.1986) (orig.proceeding) (statutory mandates to be met by candidates should be strictly construed to ensure compliance). The Court also acknowledged "compelling interests [of the candidate and the citizens of the district] warranting relief" in such cases. Id. (citing LaRouche v. Hannah, 822 S.W.2d 632, 633 (Tex.1992)). We also find instructive the difference in the majority and dissenting opinions in the very recent case styled In re Bell, 91 S.W.3d 784 (Tex.2002) (orig.proceeding). The majority, noting that the Code Construction Act applies to the Election Code, discussed "the objects `sought to be attained' by the Election Code, one such object being to prevent election fraud," and whether an interpretation produces a "just and reasonable result" in concluding that the omission of the city in the address in a petition did not invalidate the signatures. Id. at 785. The dissent stood on the proposition that statutory requirements concerning candidacy for political office are mandatory and are to be strictly enforced. Id. at 789 (citing Wallace, 707 S.W.2d at 877).

Analysis
Relator maintains that he was not aware that a separate application is required. He points to the fact that no application form was included in the package of information sent to him by Respondent when the filing of his Declaration of Intent was acknowledged. He also relies on the fact that Respondent was not personally present when he delivered the folder to Respondent's office and that no one immediately reviewed the contents of the folder to call the missing application to his attention before he left Respondent's office. From these facts, he argues that strict compliance with the deadline provisions in his case is not required to prevent fraud or corruption, pointing out that he submitted a petition with more than the required number of signatures of voters of Johnson County who want him to be on the ballot. He further points to the fact that he fully complied with all the requirements to become an independent candidate shortly after the deadline and, because the delay in filing the application could not materially affect the election, allowing him on the ballot would be a "just and reasonable result." Finally, he says that the petition can be considered an application and he thus "substantially complied" with the requirements of the Election Code.
Relief cannot be grounded on the latter assertion because the Election Code specifically provides that a deficiency in either an application or a petition cannot be remedied by the contents of the other document. Tex. Elec.Code Ann. § 141.032(c) (Vernon 2002). Likewise, Respondent's argument that granting relief *14 will effectively nullify the statutory deadlines was rejected in Taylor, and we cannot base our decision on it. Taylor, 930 S.W.2d at 583. Furthermore, issuance of a writ will not impair the election process. See id. at 584.
Because of the recent approach taken by our Supreme Court, we find persuasive Relator's argument that granting relief achieves a "just and reasonable result." Respondent's failure to include an application form with the information he furnished to Relator, although innocently done, had the potential to mislead Relator into believing that the forms that were included were all that were required. Had Respondent or anyone in his office reviewed the contents of the folder when it was delivered, the omission could have been corrected before the deadline while Relator was still present. See Painter v. Shaner, 667 S.W.2d 123, 124-25 (Tex.1984).
We are aware of our decision in In re Gibson, 960 S.W.2d at 421, where we held that the candidate, not an election official, must ensure that an application complies with state law. However, Respondent's failure to include the application form with the materials furnished to Relator and his absence from his office at a critical time in the election process distinguish this case from Gibson.

Conclusion
We conditionally grant the writ of mandamus and direct Respondent to certify, prior to the statutory deadline for such certifications, Relator as an Independent Candidate for the office of County Judge of Johnson County, Texas, in the November General Election. Tex. Elec.Code Ann. § 142.010. Because we are confident that Respondent will comply with our decision, the writ will issue only if he fails to do so.
Justice GRAY, dissents.
TOM GRAY, Justice, dissenting.
Texas courts have used a simple distinction to determine who should suffer the consequences of failing to follow the election code. Cf. Painter v. Shaner, 667 S.W.2d 123 (Tex.1984); In re Gibson, 960 S.W.2d 418 (Tex.App.-Waco 1998, orig. proceeding). If the failure to comply with the election code is something within the candidate's control, the candidate is kept off the ballot. Gibson, 960 S.W.2d at 421. Alternatively, the candidate does not suffer the consequences caused by an election official's failure to perform a ministerial duty. Painter, 667 S.W.2d at 125; see also Davis v. Taylor, 930 S.W.2d 581 (Tex. 1996). This distinction is workable and serves the greater public good of certainty and predictability.
It is undisputed that Elwell failed to timely file an application for his name to be placed on the ballot. I have not found any conduct of an election official that I can say was a violation of a ministerial duty owed to Elwell or the voters. Accordingly, I would deny the petition for writ of mandamus.
My sympathies go out to the election officials across this great State of Texas, in particular those in this district. You no longer can safely reject what is obviously a late or deficient filing. We cannot give you much guidance about what excuses you can accept for a late or incomplete application; we will only decide those issues as they present themselves. But because you no longer have the assurance of being able to rely on the candidate's failure to comply with the election code as a basis to reject an application, you will undoubtedly generate a lot of hard feelings and litigation by those you keep off the *15 ballot, by those you let on the ballot, and by those who will have opponents because you put someone on the ballot that may have filed a late or defective application.
If we were denying this petition, as I contend we should, my sympathies would be extended to Mr. Elwell and all those people that worked so hard to complete the petitions necessary for him to run as an independent candidate. I could only offer them the assurance of knowing that if it had been otherwise, if Elwell had done everything necessary to get on the ballot but was prevented by an election official, I would, with equal fervor, enforce the letter of the law against that election official. For Elwell and his supporters, with the benefit of hind-sight, it would have been preferable if the documents had been filed well in advance of the deadline so that this type problem, one that arose at the last minute, could have been avoided.
Because the majority grants relief even though Elwell's failure to comply with the election code was within his control, I respectfully dissent.
NOTES
[1]  The folder also contained documents for the potential candidacy of Bradley E. Parsons, who sought a place on the ballot for the office of Justice of the Peace, Precinct 4, Johnson County. See In re Parsons, No. 10-02-214-CV, 2002 WL 1809069, 110 S.W.3d 15 (Tex. App.-Waco 2002).


UNITED STATES DISTRICT COURT F I L E D
FOR THE DISTRICT OF COLUMBIA

JAN 2 4 2018
YoLoNDA MACK, ) ,
) c‘§'§{ls'?¢th[§‘§|"¥t~&ta?'é“'"”*°y
S l'lC l
Plaintiff, ) ° ° ""’°‘a
)
v. ) Civil ease No. 15-1973 (RJL)
)
ASPEN OF D.C., INC., et al., )
)
Defendants.
MEMORANDUM OPINION

(Januaryzi 2018) [Dkts. ## 24, 26, 28, 31]

Plaintiff Yolonda Mack (“plaintiff’ or “Mack”) brings this action against Aspen of
D.C., Inc. (“Aspen”) and Aspen’s President and CEO, Brandy R. Butler (“Butler”)
(collectively, “defendants”). Mack alleges discrimination and retaliation in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as well as failure to
pay Wages in violation of D.C. Code § 32-1012. See generally Compl. [Dkt.
# l]. Currently pending before the Court is defendants’ Motion for Summary Judgment.
See Defs.’ Mot. Summ. J. (“Defs.’ Mot.”) [Dkt. # 26].l Having considered the record and

relevant case laW, the defendants’ motion is GRANTED.

BACKGROUND

When evaluating a motion for summary judgment, the Court accepts the evidence

of the non-movant_here§ Mack_and resolves all genuine factual disputes in her favor.

' A few motions arising from discovery and deadline disputes also remain pending. See Def.
Aspen’s Motion to Quash Pl. Counsel’s Notice Deps. [Dkt. # 24]; Pl.’s Combined Mot. Rule 56(d) Relief
& Sanctions Pursuant to Rule 56(h) (“Pl.’s Rule 56 Mot.’_’) [Dkt. # 28]; Defs.’ Mot. to Strike Pl.’s Opp’n to
Defs.’ Mot. Summ. J. [Dkt. # 31]. l address those motions, as necessary, below.

Anclerson v. Ll'berly Lobby, ]nc., 477 U.S. 242, 255 (1986). A non-movant’s unsupported
allegations, however, are not sufficient to oppose admissible evidence put forward by the
party seeking summary judgment Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
With those principles in mind, l recount the factual background of this dispute

Aspen is a company that provides temporary staffing to federal, state, and local
government agencies as well as to private sector companies. Defs.’ l\/[ot. EX. l, Aff. of
Brandy Butler (“Butler Aff.”) ll 3 [Dkt. # 26-2]. ln 2010, Aspen secured a contract to
provide temporary sta'l"'l"lng to the District of Columbia Department of General Services
(“DGS”). Ia’. ll 4. The contract was structured in one-year terms, renewable annually at
the sole discretion of DGS. Id. llll 4-5, 7~9. As relevant here, the initial Aspen-DGS
contract for Fiscal Year 2010 required Aspen to provide one temporary employee to staff
DGS’s Eastern l\/larket facility as an assistant manager. Id. llll 5-6. Pursuant to that
requirement, Aspen placed Katrina Cuffey (“Cuffey”) in the assistant manager position.
Id. Although her title was assistant manager, Cuffey, curiously, had no supervisory duties
with respect to other employees Id. Those supervisory duties instead fell to Barry
Margeson, a permanent DGS employee. Id. ll l4; Defs.’ Mot. Ex. 2, Dep. of Yolanda Mack
(“l\/lack Dep.”) 22:18-19 [Dkt. # 26-3].

ln 201 l, DGS revised the scope of work of its contract with Aspen. Butler Aff.
ll l l. ln addition to the assistant manager role, which continued to be occupied by Cuffey,
DGS requested that Aspen provide the Eastern l\/larket facility with another temporary
employee to serve as an event coordinator. Ia’. ln September 201 l, Aspen hired Mack to

fill that new event coordinator position. Id. llll l l~l2. Mack’s employment agreement with

2

Aspen informed Mack that she was an at-will employee ofAspen_not DGS_and that her
employinth could be terminated at any time. See Def.’s Mot. Ex. ll [Dkt. # 26-12]. As
event coordinator, Mack interacted with Cuffey a few days a week regarding bookings at
the Eastern Market facility and related issues. See Mack Dep. 27:19-28:12.

The events giving rise to this case began a few months after Mack started in her role
as event coordinator. At that time, as Mack tells it, Cuffey began to subject Mack to
inappropriate sexual comments and advances. Mack recounts an incident in late 2011 or
early 2012 when Cuffey invited Mack to attend a “swingers party” and, in the course of
that invitation, made crude remarks regarding the potential for Mack and Cuffey to
participate in sexual intercourse with other Aspen employees. See id. at 35:14-36:7, 47:14-
21. ln addition, Mack claims that Cuffey sent her a sexually explicit text message in late
2011. See Pl.’s Rule 56 Mot. Ex. 6, Decl. onolonda Mack (“Mack Decl.”) ll 9 [Dkt. # 28-
6]. l\/lack states that Cuffey frequently remarked on the size of Mack’s breasts and asked
if she could touch them. See Mack Dep. 35:2-8, 38:12-15. The “fmal straw,” according to
Mack, was a late 2013 incident in which Cuffey offered to pay Mack to have sex with
Cuffey and an unknown third person. Id. at 40:6-11, 52:5. ln the month following that
incident, l\/lack says that she informed defendant Butler of Cuffey’s inappropriate sexual

behavior. See Pl.’s Rule 56 Mot. Ex. 3, at 21 [Dkt. # 28-3].2

2 l\/lack also claims that, following Cuffey’s invitation to the “swingers party,” she told Butler that
the invitation made her feel “uncomfortable.” l\/lack Dep. 37‘.19. But, based on the evidence, the late 2013
conversation was the first time that Mack informed an Aspen representative that she thought she was being

sexually harassed

Around that same time, Mack also confided in an Eastern Market maintenance
worker regarding Cuffey’s behavior. Mack Dep. 50:1-15. As it turns out, however, Mack’s
confidant was himself in a relationship with Cuffey and promptly informed Cuffey of
Mack’s comments Icz’. at 50:19-51:2. On February 8, 2014, Cuffey confronted Mack
outside of Eastern Market, stating that she heard Mack had “a problem” with her. [cl. at
58:6-12. Although Mack simply walked away from the conversation, the confrontation
drove her to file a formal, written complaint with Aspen management in February 2014.
Ia’. at 53:1-3, 58:15-20; see also Defs.’ Mot. Ex. 3 [Dkt. # 26-4]. lt is undisputed that Mack
experienced no inappropriate sexual comments or behavior following the filing of her
formal, written complaint. Mack Dep. 59:4.

Upon Aspen’s receipt of the complaint, Aspen immediately began to conduct an
investigation into the allegations made by Mack. Pl.’s Rule 56 Mot. Ex. 4, at 5 (“March
2014 Report”) [Dkt. # 28-4].3 As part of the investigation, Aspen management interviewed
Cuff`ey, Mack, and other individuals employed at Eastern Market. See March 2014 Report.
Notably, during l\/lack’s interview, the Aspen interviewer asked whether Mack wanted

Aspen to implement any “remedial measurels]” to change the work environment Mack

3 l\/lack states that she e-mailed a draft version of her formal, written complaint to Butler on the
evening of February 18, 2014. l\/lack Decl, ll 4. ln that draft version ofthe complaint, Mack states that she
told Butler ofCuffey’s inappropriate behavior in November 2013. See Pl.’s Rule 56 l\/lot. Ex. 7, at 34 [Dkt.
# 28-7]. According to Mack, she removed that piece of information from her final complaint at the
insistence of Aspen Vice President Harrison Boyd, who stated that it could get Butler “in trouble” with
DGS. See l\/lack Decl. ll 4. Although Boyd’s behavior, if true, was inappropriate, it does not change the
fact that Aspen promptly began its investigation based on l\/lack’s “original complaint”_i.e., the one she
sent to Butler_or the fact that Mack did not experience any sexual harassment from Cuffey following the
filing of her complaint See l\/larch 2014 Report; l\/lack Dep. 59:4.

Dep. 97:18. l\/lack responded by noting that she thought that things “should be good” once
Aspen spoke with Cuffey and that Mack was “okay with moving past all of this” in part
because she did not “really have to see” Cuffey at Eastern Market. Icl. at 98:7-14. After
the investigation was complete, Aspen issued a report of its findings and recommendations
in late l\/larch 2014. See March 2014 Report. The report noted that Aspen could not
“corroborate either the complainant’s allegations of sexual harassment, or the
respondent[’sl denial of such behavior.” ]cl. at 2. Yet the report acknowledged that there
were communications between Mack and Cuffey that, if substantiated, had the potential to
create a “hostile work environment.” Id. The report also observed that both Mack and
Cuffey gave “individual assurances” that they were “willing to continue to work at Eastern
Market and believe they can do so effectively.” Icl. To prevent any further misconduct,
however, the report required Mack and Cuffey to complete sexual harassment training. Icl.
Aspen’s vice president, Boyd, also informed Cuffey “that sexual harassment in the
workplace would not be tolerated” and that she “would be terminated” should Boyd learn
of any additional complaints Defs.’ l\/lot. Ex. 4, Aff. of Harrison Boyd (“Boyd Aff.”) ll 7
[Dkt. # 26-5].

Mack was not satisfied with the conclusions set forth in the report. During an April
2014 meeting where Aspen representatives and Mack met to discuss the report, Mack
indicated that she may have additional evidence to substantiate her claims of Cuffey’s
sexual harassment Pl.’s Rule 56 Mot. Ex. 3, at 18 [Dkt. # 28-3]. After considering Mack’s
assertions, Aspen agreed to allow Mack to supplement the internal investigation record

with her additional evidence. [a’. Mack responded by providing Aspen with a sexually

5

explicit image_an image that Mack claims was sent to her by Cuffey via text message.
Mack Decl. ll 9. Aspen considered the additional information and issued a finalized report
in July 2014. See Defs.’ Mot. Ex. 5 (“July 2014 Report”) [Dkt. # 26-6].

1n that July report, Aspen reiterated its findings that Cuffey’s communications had
the potential to create a hostile work environment Id. lt also determined that the sexually
explicit image had indeed been sent from Cuffey to l\/lack, but was transmitted on “personal
cell phones after normal work hours.” Icl. at 2. Nonetheless, the report notes that Cuffey
had completed her required sexual harassment training, and that Aspen “advised Ms.
Cuffey in writing that the behavior alleged by l\/ls. Mack is unacceptable and against ADC
corporate policies and procedures and that any further behavior of this nature and/or acts
of retribution would result in further disciplinary actions.” Icl. at 3. The report also stated
that an Aspen representative “will continue to monitor the worksite” to ensure “improved
working conditions” for Mack. Ia’.

From the time of her formal complaint through the end of the investigation, Mack
claims that she experienced various retaliatory actions on the part of Aspen and DGS staff`,
including increased monitoring by Aspen personnel and questioning about an incident in
which cocaine was found in an office at Eastern Market. See Mack Dep. 73:20-74:12,
76:5-77:1. Ultimately, Mack’s position was phased out as part of a DGS effort to
consolidate operations and cut costs. Butler Af`f. ll 15. ln particular, DGS requested that
Aspen bid on a new contract that provided only for the retention of the assistant manager
position#not Mack’s event coordinator position. Icl.; Defs.’ Mot. Ex. 12 [Dkt. # 26-13].

As a result of DGS’s alteration of the contract terms, Mack’s position at Eastern Market

6

was eliminated effective at the start of Fiscal Year 2014. Mack was informed of that fact
in September 2014, and worked through mid-October 2014. Butler Af`f. ll 16. According
to Aspen’s Human Resources and Accounting supervisor, Haile Eyob Nessibu, Mack’s
paycheck was mailed to her last known address after Mack failed to pick up the paycheck
at the office. Defs.’ Mot. Ex. 13, Af`f. of Haile Eyob Nessibu (“Nessibu Aff.”) llll 5, 7
[Dkt. # 26-14]. Mack, for her part, claims that she never received her final paycheck and,
more broadly, that the elimination of` her position was retaliatory. Mack Decl. ll l 1.
Based on the above events, Mack filed a Title VII hostile work environment and
retaliation complaint with the EEOC in January 2015. Defs.’ Mot. Ex. 10 (“Mack EEOC
Compl.”) [Dkt. # 26-11]. After receiving notice ofher right to sue in court, Mack filed this
judicial action against Aspen and Butler.4 ln her complaint, Mack alleges discrimination
and retaliation in violation of Title VH; she also presses one claim for failure to pay wages
in violation of the D.C. Code. See generally Compl. Currently before the Court is
defendants’ Motion for Summary Judgment as well as the parties’ dueling motions
stemming from discovery and deadline disputes. 1 now turn to the various issues presented

by those motions, ultimately concluding that defendants are entitled to summary judgment

4 l\/lack’s complaint also names DGS and DGS’s Acting Director, Christopher Weaver, as
defendants In a l\/larch 2017 l\/lemorandum O;iinion, 1 granted DGS and Wenver’s motion to dismiss the
claims against them. See generally 3/30/17 Mem. Op. [Dkt. # 22]. l did so after concluding that l\/lack had
failed to allege facts that, taken as true7 would state a claim that DGS was her employer for purposes of
Title Vll or establish a causal link between her complaint to Aspen and the phasing out of her position by
DGS in October 2014. See ld. at 5-9 & n.l.

STANDARD OF REVIEW

The defendants have moved for summary judgment Summary judgment may be
granted “if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is
“material” ifit “may affect the outcome ofthe litigation.” Montgo)nery v. Risen, 875 F.3d
709, 713 (D.C. Cir. 2017). A dispute is “genuine” if“the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anclerson, 477 U.S. at 248.

As previously noted, a court examining a summary judgment motion must accept
the nonmoving party’s statements as true and view all evidence and inferences in the
nonmoving party’s favor. See ia’. at 255. The party moving for summary judgment bears
the initial burden of identifying evidence that demonstrates that there is no genuine issue
of material fact See Celotex Corp., 477 U.S. at 323. lt can satisfy that burden by “citing
to particular parts of materials in the record,” or by “showing that the materials cited do
not establish” the “presence of a genuine dispute.” Fed. R. Civ. P. 56(c). lf` the moving
party meets its burden, it then falls to the nonmoving party_here, plaintiff-to identify
the “specific facts” and “properly support” any allegations showing there is a genuine issue
for trial. Icl. at 324 (internal quotation marks omitted); Anclerson, 477 U.S. at 256. lf the
nonmoving party fails to proffer relevant evidence, the moving party may succeed on
summary judgment by citing that “failure of proof`.” Celolex Corp., 477 U.S. at 323.

ANALYSIS
ln her complaint, l\/lack claims that defendants violated Title Vll by subjecting her

to a hostile work environment and retaliating against her for complaining about that

8

environment l\/lack also alleges that defendants violated the D.C. Code by illegally
withholding her final paycheck. Defendants have moved for summary judgment on all of
l\/lack’s claims. l will address l\/lack’s Title Vll and D.C. Code claims in turn.
A. Mack’s Title VII Claims

Title Vll of the Civil Rights Act of 1964, as relevant here, makes it unlawful for an
employer to discriminate against any individual with respect to “compensation, terms,
conditions, or privileges of employment” because of that individual’s “sex.” 42 U.S.C.
§ 2000e-2(a)(1). ln addition to outlawing “status-based discrimination,” Univ. ofTex. Sw.
Mea’. Clr. v. Nassar, 133 S. Ct. 2517, 2522 (2013), Title Vll also precludes employers from
retaliating against an employee “on account of an employee’s having opposed, complained
of, or sought remedies for, unlawful workplace discrimination,” ia’. (citing 42 U.S.C.
§2000e-3(a)). Mack asserts that defendants engaged in both sex discrimination and
retaliation in violation of Title Vll. l will follow the lead of the parties and analyze Mack’s
discrimination and retaliation claims separately.

l. Sex Discrimination Claim

ln this case, l\/lack grounds her discrimination claim in Cuff`ey’s inappropriate
sexual comments and behavior, which l\/lack contends created an unlawful hostile work
environment To prove an actionable “hostile work environment” sex discrimination claim

Cé

under Title Vll, a plaintiff must show that his or her workplace is permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create an abusive working

environment.” Vickers v. Powell, 493 F.3d 186, 197 (D.C. Cir. 2007) (internal quotation

9

marks omitted) (quoting Harrz`s v. Forklz`ft Sys., Inc., 510 U.S. 17, 21 (1993)). Mack
contends that the various comments and overtures from Cuf`f`ey, made over the course of
two years, were sufficiently severe or pervasive to create a hostile work environment
Defendants counter that Mack’s hostile work environment claim was not timely exhausted,
and, in any event, fails on the merits. Unfortunately for l\/lack, defendants are correct

The first problem with Mack’s discrimination claim is that it was not timely
exhausted with the Equal Employment Opportunity Commission (“EEOC”). As with all
Title Vll plaintiffs, an employee seeking to press a hostile work environment claim must
“exhaust” her remedies by filing a timely employment discrimination charge with the
EEOC. See 42 U.S.C. § 2000e-5(e); Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
109-10 (2002). Typically, the time for filing with the EEOC is 180 days. But in
jurisdictions, such as the District of Columbia, where a “worksharing agreement” exists
between the EEOC and a local fair employment practices office-here, the D.C. Office of
leluman Rights~that time period may be increased to 300 days. Although there is some
dispute in the case law regarding when the 300-day as opposed to the 180-day window
applies, see, e.g., Ashraf-Hassan v. Ernl)assy of France, 878 F. Supp. 2d 164, 170-71
(D.D.C. 2012) (recounting conflicting D.C. Circuit opinions on the subject), l need not
tackle that issue here. Even accepting that the lengthier 300-day time period is applicable
to l\/lack’s claims, she fails to satisfy it

Because hostile work environment claims are “composed of a series of separate acts
that collectively constitute one ‘unlawful employment practice,”’ the applicable rules for

timeliness are different than those for Title Vll claims based upon discrete employment

10

actions. Wlse v. Ferrz`ero, 999 F. Supp. 2d 286, 294 (D.D.C. 2013) (quoting Morgan, 536
U.S. at 117). For a plaintiffs hostile work environment claim to be deemed timely filed
with the EEOC, a plaintiff must show that “an act contributing to the claim occurs within
the filing period,” even if other “component acts of the hostile work environment fall
outside the statutory time period.” Morgan, 536 U.S. at 117. However, and critically for
purposes of this case, that Morgan rule is not an “open sesame to recovery for time-barred
violations.” Baz`rcl v. Gotl)aum, 662 F.3d 1246, 1251 (D.C. Cir. 2011). Rathe_r, timely
incidents and time-barred incidents must still be “part of the same actionable hostile
environment claim.” Icl. (internal quotation marks omitted). Actions qualify as part of the
same hostile environment claim, according to our Circuit, “only if they are adequately
linked into a coherent hostile environment claim_if`, for example, they ‘involve the same
type of employment actions, occur relatively frequently, and are perpetrated by the same
managers.”’ Icl. (alterations omitted) (quoting Morgan, 536 U.S. at 120-21). On the other
hand, if “certain intervening action by the employer” mitigated the original harassment,
then the time-barred acts cannot be revived for purposes of Title Vll’s exhaustion rule. Ia’.
(quoting Morgan, 536 U.S. at 118).

Applying those principles, it is clear that l\/lack’s discrimination claim is untimely.
Mack filed her EEOC complaint on January 15, 2015. For that complaint to be timely
under the 300-day limit, a component act of Mack’s hostile environment claim must have
occurred after March 21, 2014. Mack concedes that Cuf`fey’s last sexual comment occurred
in November 2013, over four months prior to that date, and that her final confrontation

with Cuffey occurred on February 8, 2014, over one month prior to that date. Mack

ll

nonetheless argues that other actions by Aspen, including its investigation, the issuance of
the l\/larch Report, and the issuance ofthe revised July Report, serve to revive her otherwise
time-barred clams. l disagree. Mack’s own testimony_in which she acknowledges that
no sexual comments were made after the filing of her formal complaint_shows that
Cuffey’s harassment ceased long before the 300-day filing window commenced Mack
Dep. 59:4; cf Morgan, 536 U.S. at 120-21; Bal`rcl, 662 F.3d at 1251. Although l\/lack
questions Aspen’s investigation, she has not alleged that it involved the “same type of
employment actions”_i.e., inappropriate sexual remarks_or was “perpetrated by the
same” individuals_i.e., Cuffey_as the time-barred incidents. Morgan, 536 at 120-21.5
For those reasons, Mack may not rely upon the investigations or reports to revive her
otherwise time-barred hostile work environment claim.

Even putting the issue oftimeliness aside, Mack’s discrimination claim fails on the
merits. lt is well-established that an “employer’s liability for a hostile work environment
sexual harassment claim differs depending on who does the harassing.” Curry v. District
OfCola/nl)ia, 195 F.3d 654, 659 (D.C. Cir. 1999); See Vance v. BallState Unl`v., 133 S. Ct.
2434, 2441-43 (2013). l-lere, Mack concedes that Cuffey, her co-worker with no
supervisory duties, was the only Aspen employee to subject Mack to sexually inappropriate
comments.6 ln such a situation, “the employer is liable only if it was negligent in

controlling working conditions.” Vance, 133 S. Ct. at 2439. To clear the “higher hurdle

5 lndeed, as discussed below, Mack has failed to show that defendants’ actions violated their duties
under Title Vll or otherwise contributed to the allegedly hostile work environment See infra pp. 12-14.

" There is doubt whether Cuffey’s intermittent comments, made over the course of two years, are
sufficiently severe and pervasive to create a hostile work environment l need not resolve that question,
however, given that l\/lack fails to show timely exhaustion or that Aspen was negligent

12

under the negligence standard,” a plaintiff bears the burden of establishing that the
employer “knew or should have known of the harassment and failed to implement prompt
and appropriate corrective action.” Curry, 195 F.3d at 660. Mack has not met that burden.

Cuffey’s inappropriate behavior towards Mack began in late 201 1. But the evidence
shows that Mack did not make Aspen or Butler aware of the alleged harassment until
November 2013 at the earliest7 Mack claims that Butler did not take sufficient action to
stop the sexual harassment but at the same time, Mack has not identified any sexual
comments made by Cuffey after November 2013. To be sure, Cuffey subsequently
confronted Mack about Mack’s complaints to an Eastern Market maintenance worker (not
to Butler), and it was that confrontation that drove Mack to file her first formal, written
complaint with Aspen. Butjust a few days after the filing ofthat complaint, Aspen initiated
an investigation into Mack’s allegations See July 2014 Report 1. Pursuant to the
investigation, Aspen managers interviewed Cuf`fey, Mack, and other individuals employed
at Eastern Market Ia’. Aspen also asked Mack whether she wanted Aspen to implement
any changes to the work environment See Mack Dep. 97:1-2. Mack declined, noting that
she thought things “should be good” once Aspen spoke with Cuffey and that she was “okay
with moving past all of this” given that she did not “really have to see” Cuffey at Eastern

l\/larket. Ia’. at 97:7-14.

7 Although l\/lack told Butler in casual conversation that Cuffey’s invitation to the “swingers party”
made Mack “tilicolnfortable,” l\/lack Dep. 37:19, l\/lack’s own testimony and documents indicate that she
did not inform Butler or any other Aspen employee of the fact that she thought she was being sexually
harassed by Cuffey until November 2013. See, e.g., Pl.’s Rule 56 Mot. Ex. 7, at 32-33.

13

Aspen’s investigation culminated in a March 2014 report in which Aspen concluded
that it could not substantiate Mack’s allegations, but would nonetheless require Cuffey and
Mack to undergo sexual harassment training based on the potential that the environment
had been hostile. March 2014 Report 2. Boyd, Aspen’s vice president, also informed
Cuffey that she would be terminated if she engaged in any further misbehavior. Boyd Aff.
ll 7. When l\/lack was not satisfied with that outcome, Aspen gave her an opportunity to
supplement the investigatory record. Pl.’s Rule 56 Mot. Ex. 3, at 18. lt then issued a
revised report that maintained the training requirement and warned Cuffey that any
additional inappropriate actions would be grounds for further discipline July 2014 Report
4. ln short, the evidence shows both that Cuf`fey’s sexual harassment ceased at the point
when Aspen or Butler “knew or should have known of the harassment” and that Aspen
promptly initiated an investigation and reprimanded Cuffey after Mack’s first formal
complaint Curry, 195 F.3d at 660. Mack has therefore failed-to clear the “high[l hurdle
under the negligence standard” that applies to her hostile work environment claim. Icl.

2. Retaliation Claim

Mack claims that Aspen and Butler also violated Title Vll by retaliating against her
for filing a harassment complaint For Mack to succeed on that claim, which defendants
concede was timely filed with the EEOC, she must show that defendants subjected her to
a “materially adverse” employment action because of her opposition to an unlawful
employment practice. Nassar, 133 S. Ct. at 2522; Durant v. D.C. Gov ’t, 875 F.3d 685, 697
(D.C. Cir. 2017). As relevant here, that requires proof`: 1) that, following her complaint,

l\/lack was subjected to an employment action sufficiently serious to “dissuade a reasonable

14

worker from making or supporting a charge of discrimination,” Darant, 875 F.3d at 698
(internal quotation marks and alteration omitted) (quoting Burlington N. & Santa Fe Ry.
C0. v. Wliile, 548 U.S. 53, 57 (2006)); and 2) that the adverse action would not have
occurred in the absence of the alleged retaliation-in other words, that “her protected
activity was a but-for cause of the alleged adverse action by the employer,” Nassar, 133
S. Ct. at 2534. lf` l\/lack satisfies that burden, then it falls to the employer to provide a
legitimate, nonretaliatory reason for its action. Duranl, 875 F.3d at 697.

/-\ccording to Mack, Aspen representatives retaliated against her by questioning her
regarding a bag of cocaine found in the Eastern l\/larket office space; subjecting her to
heightened scrutiny by having a project manager more thoroughly supervise her work; and
ultimately phasing out her position at Eastern 1\/1arket.8 Mack’s first two arguments can be
disposed of quickly. Based on the record, neither l\/lack’s brief questioning (to which
Cuffey was also subjected) nor her increased supervision rises to the level of a materially
adverse employment action. Cf Clark v. Johnson, 206 F. Supp. 3d 645, 660-61 (D.D.C.
2016) (employee failed to demonstrate that employer’s interviews constituted materially

adverse employment actions); Durant, 875 F.3d at 697-98 (letter of admonishment

8 Mack also claims that DGS promised to create a full-time position for her, but reneged following
l\/lack’s harassment complaint To start, it is woith noting that after filing her internal complaint, l\/lack wasl
offered the chance to take on additional work with DGS. /-\Ithough she recognized the DGS offer as a
“dynamic oppoitunity,” she declined it, citing the demands of her “current workload.” Defs.’ l\/lot. Ex. 7
[Dkt. # 26-8]. ln any event, with respect to l\/lack’s claim regarding the denial ofa position with DGS, this
Court already dismissed DGS from the case on the basis that l\/lack failed to allege facts sufficient to show
a nexus between her sexual harassment complaints and any subsequent action by DGS. See 3/30/17 l\/Iem.
Op. at 5-9 & n. 1. l\/loreover, Mack has not demonstrated that DGS created the position l\/lack identifies-
a fact that precludes a finding of retaliation. See Tayl()r v. Solis, 571 F.3d 1313, 1321 (D.C. Cir. 2009).
Mack’s retaliation claim based on the “witliholding” of her paycheck also fails: The undisputed evidence
shows that l\/lack did not pick up her paycheck when instructed and that the paycheck was subsequently
mailed to Mack’s last known home address See Nessibu Aff`. llll 5, 7; Defs.’ l\/lot. Ex. 13, at 6.

15

informing employee of“specific deficiencies regarding his conduct” not materially adverse
action); Taylor v. Solz`s, 571 F.3d 1313, 1321 (D.C. Cir. 2009) (requirement that employee
submit “biweekly reports on the status of her work” not materially adverse action).

T he termination of Mack’s event coordinator position, by contrast, may qualify as
a materially adverse employment action. But the evidence with respect to Mack’s
termination shows that it was DGS’s decision-not defendants’ decision-to phase out the
event coordinator position in order to cut costs See Butler Aff. ll 15. Under DGS’s new
request for services and contract with Aspen that began in Fiscal Year 2014, Aspen was
only obligated to provide Eastern l\/larket with the “assistant manager position” occupied
by Cuffey. Ia’.; Defs.’ Mot. Ex. 12. As a result ofthat “legitimate, nonretaliatory reason”_
namely, DGS’s decision to cut costs and restructure its staffing needs at Eastern Market_-
Aspen informed 1\/lack that her position at Eastern Market would not be maintained
Durant, 875 F.3d at 697. Mack has failed to meet her burden to come forward with
evidence to show that Aspen’s explanations and its decision to reduce staff in order to
comply with the new DGS contract were mere pretext for its unlawful discrimination Cf
Braa'y v. Ojj(lce OfSergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008).9 Her retaliation

claim against the defendants therefore fails as a matter of law.lO

° ln her reply, l\/lack argues that Aspen may be held liable for retaliation on the basis that it failed
to take corrective action to remedy retaliatory acts on the part of DGS. But at the motion to dismiss stage,
this Court dismissed the DGS defendants from the case, determining, as relevant here, that l\/lack failed to
plead facts sufficient to establish a nexus between her protected 'fil'le Vll activity and DGS’s decision to
reduce its staffing levels Mack has not challenged or otherwise asked for reconsideration of that decision,
and her belated efforts to premise Aspen’s liability on the acts of the DGS defendants are unavailing

'0 After failing to abide by the requisite deadline to oppose defendants’ motion for summary
judgment (a deadline that had been extended by the Court at her request), l\/lack filed a belated opposition

16

B. Mack’s D.C. Code Claim

ln addition to her Title Vll claims, Mack asserts that defendants violated a provision
of the D.C. Wage and Hour Law, as modified by the D.C. Minimum Wage Revision Act,
when it withheld her final paycheck. See Compl. llll 31-34 (citing D.C. Code § 32-1012).
1\/lack is wrong. Even putting aside the fact that Aspen asked l\/lack to come pick up her
paycheck and then sent a paycheck to Mack’s last known address, the D.C. Code provisions
l\/lack cites dictate the minimum wages an employer must pay, not the process or timing of
wage payments See, e.g., Fudali v. Pivotal Corp., 310 F. Supp. 2d 22, 24-26 (D.D.C.
2004) (D.C. Wage and llour Law as codified in § 32-1001 et seq. “quite clearly confines
itself to minimum wage issues”). Accordingly, l\/lack’s claim under D.C. Code § 32-1012

fails

as well as a motion for Rule 56(d) reliefand Rule 56(h) sanctions See Pl.’s Rule 56 l\/lot. [Dkt. # 28]. The
Court will DENY l\/lack’s Ru|e 56 motion.

First, citing Rule 56(d), l\/lack asks this Court to defer ruling on defendants’ motion for summary
judgment until she has had the opportunity to complete additional depositions Specifically, l\/lack says she
needs to depose Butler, Boyd, and Nessibu in order to “confii‘m the facts established” by documents in
l\/lack’s possession and “c|arify the information contained in their affidavits.” l\/lem. P & A Supp. Pl.’s
Rule 56 l\/lot. 25. To start, l\/[ack did not comply with Local Civil Rule 7(m)’s meet and confer
requirement¢a failure that warrants denial of her motion. Beyond that, as defendants rightly point out,
Rule 56(d) is not a means by which a party can delay the inevitable by making conclusory allegations
regarding the need for additional discovery at the eleventh hour. See Defs.’ Opp’n Pl.’s Rule 56 Mot. 6-7
(collecting cases). Here, l\/lack has failed to satisfy her obligation to point out the “particu|ar facts” she
seeks to discover and why those facts would be material to the outcome of the litigation Smilh v. Uniled
Slales, 843 F.3d 509, 513 (D.C. Cir. 2016) (quoting C()nvertinr) v. U.S. Dep'l.]ustlce, 684 F.3d 93, 99-100
(D.C. Cir. 2012)). Even more importantly, l have taken all of l\/lack’s factual assertions_including those
that contradict the facts as told by defendants-as true for purposes ofthis motion, and have concluded that
her claims nonetheless fail as a matter of law. Given that fact, l\/lack’s attempts to use Rule 56(d) discovery
to undermine the credibility of Aspen’s witnesses are futile. See Defs.’ Opp’n Pl.’s Rule 56 l\/lot. 10-13.

Second, l\/lack moves for sanctions pursuant to Ru|e 56(11), arguing that Aspen’s declarations were
submitted “in bad faith.” Fed. R. Civ, P. 56(h). But l\/lack has not supported that claim by, for example,
showing that the declarations “directly contradicted previous sworn testimony” or were submitted “for the
sole purpose of delaying the beginning of the trial.” 1013 Charles Alan Wright & Arthur R. l\/liller, Federal
Practl`ce and Prc)cedure § 2742 (4th ed. 2013). The mere fact that l\/lack disputes the assertions contained
in Aspen’s declarations does not make this situation analogous to those “few situations in which the courts
have resorted to Ru|e 56(h).” Id.

17

CONCLUSION

For the foregoing reasons, the Court GRANTS defendants’ Motion for Summary

Judgment An Order consistent with this decision accompanies this Memorandum

iam

nimmwa

United States District ludge

Opinion.ll

" Because l am granting defendants’ l\/lotion for Summary Judgment even having considered
plaintiffs opposition and the suppoiting materials, l will DENY AS l\/lOOT defendants l\/lotion to Strike
Plaintiff’s Opposition [Dkt. # 31], notwithstanding the fact that Mack’s opposition was filed late, without
motion, in violation of Federal Rule of Civil Procedure 6(b). l will similarly DENY AS l\/lOOT Aspen’s
l\/lotion to Quash PlaintiffCounse|’s Notice of Depositions [Dkt. # 24]. .

18


115 F.Supp.2d 599 (2000)
MARYLAND COMMUNITY HEALTH SYSTEM, LLP
v.
Parris N. GLENDENING, Governor, State of Maryland
and
Georges Benjamin, M.D., Secretary, Maryland Department of Health and Mental Hygiene.
Civil No. JFM-99-1486.
United States District Court, D. Maryland.
October 4, 2000.
*600 James L. Feldesman, Khatereh S. Ghiladi, Feldesman, Tucker, Leifer, Fidell & Bank, Washington, DC, for Plaintiff.
Elizabeth M. Kameen, Wendy A. Kronmiller, Office of Atty. General, Baltimore, MD, for Defendants.

MEMORANDUM OPINION
MOTZ, District Judge.
The surviving count in this § 1983 action concerns whether Maryland must pay a particular federally imposed obligation to certain health centers with separate state funds, or whether it may continue to redirect funds designated for the managed-care organizations that serve the health centers. A related claim concerns whether Maryland may require the health centers to request the funds or whether it must pay them automatically. Both sides move for summary judgment on the merits of whether the state's payment method violates federal law. The defendants also move for summary judgment based on Eleventh-Amendment immunity.

I.
Maryland Community Health System [MCHS], the plaintiff, is a partnership of certain federally qualified health centers [FQHCs] serving the poor. FQHCs have special burdens and rights under the Medicaid statute. 42 U.S.C.A. §§ 254b(j)(3)(F), 1396a(a)(13), 1396d(a)(2)(C) (West Supp.1999). Congress has made federal loan guarantees available to FQHCs in an effort to encourage them to establish their own managed-care organizations [MCOs]. 42 U.S.C.A. § 254b(d) (West Supp.1999). MCHS is a 50% owner of Priority Partners, an incorporated MCO.
Maryland has received a waiver of various Medicaid provisions in order to establish an experimental program requiring all recipients to enroll in managed-care organizations.
*601 The Balanced Budget Act of 1997 amended Medicaid law to require that FQHCs receive 100% reimbursement of their "reasonable costs" in treating patients. 42 U.S.C.A. § 1396a(a)(13)(C) (West Supp.1999). A FQHC bills its managed-care organization for a percentage of its "reasonable costs," and the state is required to top the MCO's payments to the FQHC up to 100%. Id. Maryland requires FQHCs to request these supplemental funds. Md.Code Ann. Health-Gen. § 15-103 (Supp.1998). When a FQHC requests supplemental funds, Maryland takes the money away from state payments to the managed-care organization that works with the FQHC. Id. For a FQHC that owns a substantial percentage of its own managed-care organization, as the plaintiff does, access to supplemental funds is less of an asset, to say the least, than it would be if they were paid from another source.

II.
The defendants move for summary judgment on the grounds that they are immune from suit under the Eleventh Amendment. The Eleventh Amendment bars suits against unconsenting states in federal court. Ex parte Young provides an exception to the general law, permitting prospective injunctive relief to correct an ongoing violation if the suit is brought against state officials in their official capacities. 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). "An allegation of an ongoing violation of federal law where the requested relief is prospective is ordinarily sufficient to invoke the Young fiction." Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, 281, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997). A claimant must seek "prospective relief to end a state officer's ongoing violation of federal law." 521 U.S. at 288, 117 S.Ct. 2028 (O'Connor, J., concurring). Special limitations on the Young doctrine include the presence of a detailed congressional remedial scheme or a "special sovereignty interest[]." 521 U.S. at 261, 117 S.Ct. 2028 (special sovereignty); Seminole Tribe v. Florida, 517 U.S. 44, 74-76, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996)(remedial scheme).
The Young exception is not always available for suits against state officials in their official capacities, even if the plaintiffs seek prospective injunctive relief. If the "action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants." 521 U.S. at 277, 117 S.Ct. 2028, quoting Ford Motor Co. v. Department of Treasury of Ind., 323 U.S. 459, 464, 65 S.Ct. 347, 89 L.Ed. 389 (1945). A suit for prospective relief may proceed, however, despite a "substantial ancillary effect on the state treasury." Papasan v. Allain, 478 U.S. 265, 278, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986).
MCHS asks the Court to enjoin the governor and secretary of health of Maryland from paying supplemental funds to federally qualified health centers (including MCHS's member organizations) with Medicaid funds that would otherwise be available to the managed-care organizations that work with those centers. MCHS further asks the Court to enjoin the defendants from requiring federally qualified health centers to request the supplemental funds.
The defendants do not challenge the prospective nature of the relief, nor the ongoing nature of the violation if one exists. They argue that the relief requested has a direct financial effect on the state treasury and that the Eleventh Amendment therefore bars it. In addition, they argue that the relief sought would force the state to alter and increase its budget, intruding on Maryland's special sovereignty interest under Coeur d'Alene Tribe, 521 U.S. 261, 117 S.Ct. 2028, 138 L.Ed.2d 438, in appropriating its own funds.[1]
*602 The closest analogue in the Fourth Circuit's recent precedent to the case at bar sheds light on the defendants' financial-impact argument, but predates Coeur d'Alene Tribe 's introduction of special sovereignty interests. In 1994, the court found an Eleventh-Amendment challenge to an action by medical providers under the Medicaid statute to be "completely meritless." Rehabilitation Ass'n of Va., Inc. v. Kozlowski, 42 F.3d 1444, 1448 (4th Cir. 1994). The court upheld an injunction requiring the state to reimburse medical providers according to rates that were uniformly higher than those the state had been paying. 42 F.3d at 1449 n. 5. (Although Congress later changed the Medicaid statute to bar future suits claiming inadequate rates, see HCMF Corp. v. Gilmore, 26 F.Supp.2d 873, 875-76 (W.D.Va. 1998), MCHS does not currently challenge the adequacy of reimbursement rates.) The Fourth Circuit found that the request for prospective injunctive relief qualified for a Young exception although the relief would require the state to spend more money than it had previously spent.[2] The relief sought in Rehabilitation Association was if anything closer to a direct, not an ancillary, burden on the state treasury than the relief sought in the case at bar.[3] Unless subsequent decisions of the Supreme Court or Fourth Circuit have altered the law that this Court must apply, the financial aspect of the prospective relief that MCHA seeks should not foreclose the availability of a similar Young exception under Fourth Circuit precedent today.[4]
Since the Fourth Circuit decided Rehabilitation Association, the Supreme Court has analyzed the Eleventh Amendment repeatedly. Seminole Tribe, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252; Coeur d'Alene Tribe, 521 U.S. 261, 117 S.Ct. 2028, 138 L.Ed.2d 438; Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank, 527 U.S. 627, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999); College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999); Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999); Kimel v. Florida Bd. of Regents, 528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000). Except for Coeur d'Alene Tribe, the new cases are plainly not applicable to MCHS's suit. Seminole Tribe limits Young exceptions where Congress has provided a detailed remedial scheme; no one suggests that such a scheme exists under the Medicaid statute. Alden concerns suits in state courts. Florida *603 Prepaid, and Kimel concern congressional power to abrogate the Eleventh Amendment or to force a state waiver, neither of which is at issue here.
Coeur d'Alene Tribe limits the availability of a Young exception where "special sovereignty interests" are at issue. 521 U.S. at 281, 117 S.Ct. 2028. Without speculating generally as to what might constitute a special sovereignty interest, the Court found that states have a special sovereignty interest in "navigable waters," 521 U.S. at 284, 117 S.Ct. 2028, or "sovereign control over submerged lands," 521 U.S. at 282, 117 S.Ct. 2028, or "jurisdictional control over important public lands." 521 U.S. at 283, 117 S.Ct. 2028. The basis for Idaho's special interest in Lake Coeur d'Alene includes ancient doctrines and English common law governing navigable waters, 521 U.S. at 284, 117 S.Ct. 2028, as well as the constitutional status of each state's sovereignty over the lands with which it entered the Union, 521 U.S. at 283, 117 S.Ct. 2028. In its only subsequent comment on this aspect of Coeur d'Alene Tribe, the Court cited "long-standing precedent" in refusing to bar in rem admiralty actions against property that states claimed. California v. Deep Sea Research, Inc., 523 U.S. 491, 506-07, 118 S.Ct. 1464, 140 L.Ed.2d 626 (1998). The Deep Sea Research Court refused to speculate on analogous cases. Id.
The defendants contend that "the state's ... interest in appropriating its own funds" is a special sovereignty interest under Coeur d'Alene Tribe. Defs' Opp. at 8. In support, they cite a Sixth Circuit case that preceded Coeur d'Alene Tribe itself by ten years, and argue that the state would have to change its budget, requiring a new budget appropriation, if its current payment system is invalidated. Defs.' Opp. at 8-9.
The Fourth Circuit has not defined "special sovereignty interests" under Coeur d'Alene Tribe. Cf. Litman v. George Mason Univ., 186 F.3d 544 (4th Cir.1999)(citing Coeur d'Alene Tribe in discussing a waiver question); Smith v. Cromer, 159 F.3d 875 (4th Cir.1998)(citing Coeur d'Alene Tribe in discussing the Eleventh Amendment as a quasi-jurisdictional bar); Republic of Paraguay v. Allen, 134 F.3d 622 (4th Cir.1998)(citing Coeur d'Alene Tribe in refusing to find a Young exception where a violation was neither prospective nor ongoing).
Other circuits have refused to find "special sovereignty interests" even in land-use suits, regardless of prospective effects on a state treasury.[5] The Eleventh Circuit held that a state's direct financial interest in "profits under [a] recreational land lease" was not a special sovereignty interest. Elephant Butte Irrigation Dist. v. Department of Interior, 160 F.3d 602, 612 (11th Cir.1998). The Tenth Circuit has refused to apply the Coeur d'Alene Tribe doctrine to "limited aspects of how the state may manage ... public lands." Branson Sch. Dist. v. Romer, 161 F.3d 619, 623 (10th Cir.1998). See also Mille Lacs Band of Chippewa Indians v. Minnesota, 124 F.3d 904, 914 (8th Cir.1997)(rejecting a special sovereignty defense against a tribal claim to hunting, fishing, and gathering rights).
Even after Coeur d'Alene Tribe, several circuits have found Young exceptions for cases challenging state management of federally funded welfare programs despite serious potential effects on the state treasury. *604 The Eleventh Circuit recently noted that a suit against a state for failure to reimburse health care providers under past Medicaid law had met the Young requirements, without mentioning a Coeur d'Alene Tribe problem. Florida Ass'n of Rehabilitation Facilities v. Florida Dep't of Health & Rehabilitative Servs., 225 F.3d 1208, 1218-19 (11th Cir.) The Seventh Circuit has found "no important sovereignty interests" in "a suit ... seeking to enforce compliance with the federal program under which [the state] ha[s] accepted funds." Marie O. v. Edgar, 131 F.3d 610, 617 & n. 13 (7th Cir.1997)(permitting a Young-based suit for provision of early intervention services required under the Individuals with Disabilities Education Act). The Tenth Circuit similarly has found that a "state's interest in administering a welfare program at least partially funded by the federal government is not such a core sovereign interest as to preclude the application of Ex parte Young." J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1287 (10th Cir.1999). The Ninth and Eleventh Circuits have permitted Medicaid suits that would increase state expenses. Children's Hosp. & Health Ctr. v. Belshe, 188 F.3d 1090, 1095 (9th Cir.1999)(finding a Young exception for a challenge to Medicaid reimbursement rates); Doe v. Chiles, 136 F.3d 709, 719-20 (11th Cir.1998)(permitting a Young action for "reasonable promptness" under the Medicaid Act). See also Johnson v. Guhl, 91 F.Supp.2d 754, 771-72 (D.N.J.2000)("[G]ranting Plaintiffs prospective injunctive relief would likely require the State to spend more from the state treasury than if it were left to continue its current course of conduct. Such an effect would, however, be ancillary...."). The weight of authority beyond our circuit makes it plain that the state's interest in administering the Medicaid program is not a special sovereignty interest under Coeur d'Alene Tribe.
The Fourth Circuit has not spoken again on Rehabilitation Association 's treatment of the Eleventh Amendment issue. Nor, indeed, has any other circuit criticized this aspect of the decision. MCHS seeks prospective and injunctive relief, directed to an alleged ongoing violation of federal law; any additional prospective expense required by compliance with federal law would be ancillary. In the absence of Fourth Circuit analysis of Coeur d'Alene Tribe, this Court declines to expand that case's holding to bar suits seeking relief with a substantial prospective impact on the state treasury. The Eleventh Amendment does not bar MCHS's claim.

III.
In the typical Medicaid case brought by health-care providers, the injury to the providers is plainthey say they should be paid more money. See, e.g., Maryland Psychiatric Soc'y v. Wasserman, 102 F.3d 717 (4th Cir.1996); Cabell Huntington Hosp., Inc. v. Shalala, 101 F.3d 984 (4th Cir.1996). MCHS asks the Court to require the state to pay its member FQHCs, not more, but differently. The precise change sought, and by extension the precise injury suffered, are not clear from the pleadings. In its Amended Complaint, MCHS requests the Court to "order defendants immediately to pay plaintiff's FQHC partners directly ... without deducting that [sum] from MCO capitations and without requiring those FQHCs first to apply for such reimbursement." Am. Compl. at 20. MCHS argues that in the Balanced Budget Act of 1997, "Congress statutorily required the transfer of responsibility for payment of FQHC reasonable costs from the MCOs to the States." Pl.'s Opp. at 7 (emphasis in original).
In its Reply, however, MCHS argues that the state could satisfy the law by deducting supplemental funds due to FQHCs from the funds otherwise available to all MCOs.[6] Pl.'s Reply at 4. MCHS *605 objects only when the state deducts the supplemental funds exclusively from the MCO under contract to the FQHC that originally requested the funds. Id. Some percentage of the payments to a given FQHC may then come from the MCO affiliated with that FQHC. Apparently the amount, not the fact, of deduction from the affiliated MCO is illegal under MCHS's theory.
Whether it complains of the fact or the amount of deduction from the affiliated MCO, MCHS complains of a harm suffered primarily by another organization, not by itself or its members. "[T]he MCO pay the difference," but MCHS, which is not an MCO, argues that the state should pay instead. Am. Compl. ¶ 39. The defendants admit that an MCO such as Priority Partners loses money from its state payments when FQHCs affiliated with it choose to request the supplemental funds to which they are entitled. Defs.' Opp. at 3. As a shareholder of Priority Partners, MCHS suffers financially when Priority Partners loses this money; Maryland's payment system is sub-optimal, to say the least, for any FQHC, and particularly for any FQHCs that have formed their own MCO. But MCHS implicitly concedes that its constituent FQHCs, when they request it, receive the full supplemental funds to which they are entitled by federal law. Pl.'s Reply at 4. Any harm to MCHS from the state's payment system is a harm to its pocketbook in its capacity as a 50% shareholder of Priority Partners. Likewise, any harm to a FQHC partner in MCHS from the state's payment system exists only because the FQHC owns an interest in Priority Partners. The loss to MCHS and its members is thus derivative of the loss to Priority Partners.
"It is considered a "fundamental rule" that "[a] shareholder even the sole shareholder-does not have standing to assert claims alleging wrongs to the corporation."" Smith Setzer & Sons, Inc. v. South Carolina Procurement Review Panel, 20 F.3d 1311 (4th Cir.1994) (citation omitted)(applying North Carolina law). Maryland corporate law, which governs the question of shareholder standing, Kamen v. Kemper Financial Servs., 500 U.S. 90, 98-99, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991), follows this rule. O'Donnell v. Sardegna, 336 Md. 18, 28, 646 A.2d 398 (1994). Maryland's payment system clearly harms Priority Partners. How it harms MCHS or its members except as shareholders of Priority Partners is harder to see.[7] MCHS and its members FQHCs have not shown a direct injury in fact.[8]Lujan v. Defenders of Wildlife, 504 U.S. 555, 557, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).[9]
MCHS argues that Congress has encouraged FQHCs to form their own MCOs, and that the Catch-22 in which Maryland's payment system places MCHS's members frustrates the legislative purpose. Am. Compl. ¶¶ 22-23. Congress *606 has provided loan guarantees so that FHQCs may form their own MCOs. 42 U.S.C.A. § 254b(d) (West Supp.1999). Maryland's payment system plainly hurts any MCO that contracts with any FQHC. The system very well may frustrate Congress's purpose in encouraging FQHCs to form MCOs and more generally in supporting FQHCs financially. Nevertheless, the hurt is to the MCO, affecting MCHS as a shareholder. MCHS's claim to be paid from a different source fails for lack of standing.
MCHS further argues in a letter of September 21, 2000, that the "State's use of a portion of the capitation payment from the MCOs to pay FQHCs their costs poses a disincentive for MCOs to contract with Maryland FQHCs," and that "[t]o the extent that any MCO is deterred from entering into contracts with MCHS' FQHC members, the ability of FQHCs to secure the costs to which they are entitled, as well as their competitive standing, is detrimentally affected" (emphasis in original). MCHS has presented no evidence that any of its member FQHCs have been dropped by their MCOs, or that any MCO has been "deterred from entering into contracts with MCHS' FQHC members." The existence of such a disincentive, however unwise as a matter of policy, cannot establish injury in fact without some showing of harm not resulting from decisions made by MCHS's own members.[10]
The other aspect of MCHS's surviving claim, whether Maryland's payment of the supplemental funds is "automatic" or not, narrowly survives the standing inquiry. If MCHS reads the merits correctly, the state's methodology subjects MCHS's member FQHCs to more regulation than federal law permits. The D.C. Circuit has held that standing existed where plaintiffs claim to be "materially harmed by the additional regulatory burden imposed on them" as a result of unlawful action. Association of Am. R.R. v. Dep't of Transp., 38 F.3d 582, 586 (D.C.Cir.1994). For seeking automatic payment, MCHS has standing.

IV.
The defendants challenged the existence of a cause of action under § 1983 with respect to three counts of the plaintiff's Amended Complaint, all now dismissed. The defendants have not challenged the existence of a cause of action with respect to the surviving count, and accordingly the Court will not address the matter. Whether a statute creates a cause of action is not a jurisdictional question. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 88-93, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).

V.
All parties have moved for summary judgment on the merits. The remaining disputes are questions of law. Defs.' Opp. at 3 n.1. No party disputes the facts of how Maryland's payment system works and there are no other genuine disputes of material fact.
By federal law, states must provide certain services in their state Medicaid plans, 42 U.S.C. § 1396a(a)(10)(A), including the services of federally qualified health centers to the poor, 42 U.S.C. § 1396d(a)(2)(C). "A State must provide for payment" for medical assistance of a certain percentage of the costs of services rendered, and "in the case of services furnished by a Federally-qualified health center ... for payment to the center or clinic at least quarterly by the State of a supplemental payment" that would ensure the same percentage reimbursement of their reasonable costs. 42 U.S.C. § 1396a(a)(13)(C). (The percentage is currently set to decline steadily from fiscal year 2000 through fiscal year 2003. Id.) Maryland provided for payment under the statute by requiring the FQHC to request *607 payment. Md.Code Ann. Health-Gen. § 15-103(e)(3). MCHS argues that this approach has "turned the supplemental payment requirements of the [Balanced Budget Act] into an optional program which States need to implement only if the FQHC makes a request." Pl.'s Opp. at 12. The defendants argue, inter alia, that Maryland has to know how much to pay the FQHCs before it can pay supplemental funds.
Nothing in the text of the statute or in its legislative history bars Maryland's method of determining how much to pay the FQHCs. The statute requires the state to "provide ... for payment to the center or clinic at least quarterly by the State of a supplemental payment...." 42 U.S.C. § 1396a(a)(13)(C). The legislative history says "[s]tates would be required to make supplemental payments to the FQHCs.... Such payments would be equal to the difference between the contracted amount and the cost-based amount." H. Rep. No. 105-217, at 869 (1997), reprinted in 1997 U.S.C.C.A.N. 176, 490. Neither suggests that the state may not tell the FQHCs to tell it how much to pay them. Moreover, the defendants' point that the state must know how much to pay is logical. Maryland's payment method puts FQHCs in an uncomfortable political position in that it requires them to request funds that will be taken from their MCO. The key to their discomfort, however, lies in the withdrawal of funds from the MCO, a problem that must be raised by the MCO, as discussed above.
For these reasons, the Court will grant the defendants' Motion to Dismiss as to the plaintiff's request for an injunction governing the source of payment of supplemental funds to FQHCs. The Court will grant the defendants' Motion for Summary Judgment as to the plaintiff's request for an injunction requiring automatic payment of supplemental funds.
NOTES
[1]  Defendants' Eleventh Amendment arguments rely on the assumption that the relief sought would be expensive to the state treasury, an assumption that MCHS denies. Pl.'s Reply at 4. The analysis of the Eleventh Amendment here is based on the defendants' own assumption.
[2]  Defendants cite the Sixth Circuit's decision that an order to pay desegregation costs was not ancillary to a non-compensatory interest. Kelley v. Metropolitan County Bd. Ed., 836 F.2d 986 (6th Cir.1987). The Fourth Circuit's decision in Rehabilitation Association postdates Kelley and the Supreme Court cases on ancillary expenses on which defendants rely. The Rehabilitation Association court evidently did not find the request to order increased state Medicaid payments to be impermissibly direct in its impact on the state treasury.
[3]  In addition, the Fourth Circuit has more recently found a Young exception for relief that would bar collection of an assessed tax, despite its obvious negative impact on the state treasury. CSX Transp., Inc. v. Board of Pub. Works of W. Va., 138 F.3d 537 (4th Cir.1998). The CSX decision barred collection of revenue rather than ordering what is arguably expense, placing it further from the case at bar than is Rehabilitation Association.
[4]  Other circuits have permitted cases to proceed under Young exceptions despite enormous prospective effects on state treasuries. See, e.g., Children's Hosp. & Health Ctr. v. Belshe, 188 F.3d 1090, 1095 (9th Cir.1999)(finding a Young exception for a challenge to Medicaid reimbursement rates); J.B. ex rel. Hart v. Valdez, 186 F.3d 1280 (10th Cir.1999)(permitting a suit under federal acts including the Medicaid Act). Cf. Armstrong v. Wilson, 124 F.3d 1019, 1026 (9th Cir. 1997)("No court ... has carved out an exception to Ex parte Young on the basis of the complexity and scope of the prospective injunctive relief sought. To the contrary, many courts have permitted suits to proceed under Young where plaintiffs sought comprehensive relief....").
[5]  Of the three published circuit cases that have found special sovereignty interests barring a Young exception under Coeur d'Alene Tribe, two are land-use issues. Ysleta Del Sur Pueblo v. Laney, 199 F.3d 281, 290 (5th Cir.2000)(finding that a tribe had "not sufficiently distinguished" its own case from a quiet title action); MacDonald v. Village of Northport, 164 F.3d 964, 972 (6th Cir.1999)(finding that a challenge to public use of a right of way that provided public access to a navigable waterway implicated special sovereignty interests). The third case relied on a congressional finding of special sovereignty interests. ANR Pipeline Co. v. Lafaver, 150 F.3d 1178, 1193 (10th Cir.1998)("Congress has made it clear in no uncertain terms that a state has a special and fundamental interest in its tax collection system.... [I]t is impossible to imagine that a state government could continue to exist without the power to tax.").
[6]  Administrative regulations that are not yet effective would implement such a solution for the calendar year 2001, for which the Maryland legislature ordered the creation of "a supplemental pool to pay the FQHCs by adjusting total HealthChoice funds," the funds available to all MCOs. Defs.' Opp. at 11 n.2. MCHS has advised the Court by letter of October 2, 2000, of several potential problems with these regulations; it has not argued that a sufficient pool of money for FQHC payments, drawn from all MCOs, would violate the Balanced Budget Act.
[7]  The Court recognizes that a congressional amendment affecting cases seeking higher reimbursement rates under the Medicaid statute may affect Priority Partners's ability to challenge the state's alleged violations. See, e.g., Children's Hosp. & Health Ctr. v. Belshe, 188 F.3d 1090, 1094 (9th Cir.1999).
[8]  Courts differ on whether the issue analyzed here should be classified as a question of the real party in interest, shareholder standing, or simply standing. See 13 Charles Alan Wright et al., Federal Practice & Procedure § 3531 (2d ed.1984). Following the Fourth Circuit's approach in Smith Setzer & Sons, Inc. v. South Carolina Procurement Review Panel, 20 F.3d 1311, this Court uses the shareholder standing framework.
[9]  Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149 (4th Cir. 2000)(en banc), and Friends of the Earth, Inc. v. Laidlaw Environmental Services, 528 U.S. 167, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000), concerned the Clean Water Act, in which Congress had expressed its plain intent to broaden standing as far as possible. MCHS does not argue directly that the question of injury in fact in the case at bar is illuminated by the Laidlaw Court's and the Fourth Circuit's holdings that thwarted use of polluted waters constitutes injury in fact.
[10]  A state administrative proceeding by an MCO to challenge the state's withholding of funds does not constitute injury in fact to the FQHC involved, which received its payment. The necessity of responding to lawful discovery requests does not constitute injury in fact either.


74 Md. App. 204 (1988)
536 A.2d 1192
MICHAEL DERWIN WILSON
v.
STATE OF MARYLAND.
No. 823, September Term, 1987.
Court of Special Appeals of Maryland.
February 9, 1988.
Certiorari Denied June 16, 1988.
Richard M. Karceski, Baltimore (Richard L. May, Glen Burnie, and Susan McMillan Davis, Towson, on brief), for appellant.
Mary Ellen Barbera, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Warren B. Duckett, Jr., State's Atty. for Anne Arundel County, Annapolis, on brief), for appellee.
Argued before GARRITY, BLOOM and WENNER, JJ.
WENNER, Judge.
Appellant, Michael Derwin Wilson, was charged in a nine count criminal information, filed in the Circuit Court for Anne Arundel County with manslaughter by automobile, homicide by motor vehicle while intoxicated, driving while intoxicated, driving under the influence of alcohol, reckless driving, negligent driving, driving on the wrong side of the roadway, failure to yield the right of way, and improper left turn. The court granted appellant's Motion for Judgment of Acquittal as to failure to yield the right of way and improper left turn, and found him guilty of manslaughter by automobile and driving while intoxicated. The remaining counts were merged. The court sentenced appellant to the custody of the Anne Arundel County Detention Center for three years, suspended all but eighteen months in favor of three years probation and ordered him to make restitution in the amount of $3,701.21. Upon appeal, appellant contends that:
(1) The trial court committed prejudicial error when it admitted evidence of appellant's blood test for intoxication;
(2) The evidence was insufficient to convict appellant of vehicular manslaughter;
(3) The trial court committed prejudicial error when it refused to permit evidence of the victim's negligence; and
(4) Appellant was improperly charged with manslaughter by automobile pursuant to Md. Ann. Code Art. 27, § 388 (1982 Cum.Supp.).
Inasmuch as we find all of appellant's complaints to be without merit, we shall affirm.
The facts surrounding the tragic incident giving rise to this appeal may be briefly stated. On October 25, 1986 appellant was involved in a two car head-on collision which resulted in the death of Clarence Lee Brady, III. Appellant was taken to Anne Arundel General Hospital to be treated for injuries. While at the hospital, a blood test for intoxication was performed without appellant's consent and over his objection.

I.

(A)
Appellant's first contention centers on the appropriate interpretation of Md.Transp.Code Ann. § 16.205.1(c) (1987 Repl.Vol.) which reads:
(c) Circumstances under which chemical tests required; administration; liability.  If a person is involved in a motor vehicle accident that results in the death of another person and the person is detained by a police officer who has reasonable grounds to believe that the person has been driving or attempting to drive while intoxicated or while under the influence of alcohol, the person shall be required to submit to a chemical test, as directed by the officer, of the person's blood or breath to determine the alcohol content of the person's blood. If a police officer directs that a person's blood or breath be tested for alcohol, then the provisions of § 10-304 of the Courts and Judicial Proceedings Article shall apply. Any medical personnel who perform any test required by this section are not liable for any civil damages as the result of any act or omission related to such test, not amounting to gross negligence.
Appellant argues that 16-205.1(c) prohibits compelling the test until a physician licensed to practice medicine in this State pronounces death. We do not agree.
The principal rule of statutory construction is to ascertain the actual intent of the legislature, the primary source of which is the language of the statute itself. State v. Loscomb, 291 Md. 424, 429, 435 A.2d 764 (1981). According to the language of § 16-205.1(c), a blood test may be compelled if a person was involved in a fatal accident and the detaining officer reasonably believes that the person was driving or attempting to drive while intoxicated or while under the influence of alcohol.[1]
A review of § 16-205.1(c)'s legislative history is instructive. As originally proposed, Senate Bill 626[2] (now § 16-205.1(c)) provided:
If a person is involved in a motor vehicle accident that results in death or bodily injury to another person, and the person is detained on suspicion of driving or attempting to drive while intoxicated or while under the influence of alcohol, the person shall submit to a chemical test of the person's blood or breath to determine the alcohol content of the person's blood.
Ch. 100, Acts of 1982.
Senate Bill 626 was subsequently amended twice before being enacted in its present form. The first amendment added "bodily injury to another person which requires immediate medical attention and removal to a medical facility." The second amendment deleted all references to any type of bodily injury. We believe this history clears up any question about the statute's meaning. As can be seen, when Senate Bill 626 was first proposed its intent was to allow compulsory blood and breath tests whenever an investigating officer arrived on the scene of an accident, discovered a death or bodily injury, and suspected the person involved to have been driving or attempting to drive while intoxicated or under the influence of alcohol. Apparently the legislature felt that this wording was too broad and amended the Bill to include only cases where a death had occurred. Thus, we conclude that the legislature intended that death precede a compulsory blood or breath test.
We now turn to the facts of the present case. At the suppression hearing, the investigating officer, Officer Hammock, testified that the paramedics and firefighters covered the victim with a raincoat, were not attempting to help him anymore, and finally covered the victim's head with a raincoat. Although Officer Hammock made no inquiry of the paramedics or firefighters, he then instructed Officer David Smith to accompany appellant to the hospital and see that a blood test was performed.[3]
As we see it, Officer Hammock's conclusion that the seriously injured victim had died when he saw the firefighters draw the raincoat over the victim's face was entirely reasonable. Surely the firefighters would not have risked hampering the breathing of a seriously injured accident victim by drawing a raincoat over his face. Thus, we hold that under the facts of this case, the officer was fully justified in having appellant's blood withdrawn over appellant's objection, and we reject appellant's argument that a blood test may not be compelled until a licensed physician pronounces death.
We believe that our construction of § 16-205.1(c) is entirely consistent with the notion that the legislative purpose in enacting Md.Cts. & Jud.Proc.Code Ann. §§ 10-302-10-309 (1984) and § 16-205.1 was to "enhance the ability of prosecutors to deal effectively with the drunk driver problem" and "rid our highways of the drunk driver menace." Brice v. State, 71 Md. App. 563, 567, 526 A.2d 647 (1987) (quoting Willis v. State, 302 Md. 363, 369-370, 488 A.2d 171 (1985)); Little v. State, 300 Md. 485, 479 A.2d 903 (1984); State v. Werkheiser, 299 Md. 529, 474 A.2d 898 (1984); and State v. Moon, 291 Md. 463, 477, 436 A.2d 420 (1981), cert. denied, 469 U.S. 1207, 105 S.Ct. 1170, 84 L.Ed.2d 320 (1985). As we have noted, § 16-205.1(c) sets out the circumstances under which a blood test may be compelled. Under our holding today, where the other requirements of the section are met, a blood or breath test may be compelled when the officer reasonably believes a death has occurred.

(B)
Having rejected appellant's first attack on the admissibility of the blood alcohol test, we now examine his second complaint  noncompliance with Md.Code Cts. & Jud. Proc. § 10-304(c) (1984). Specifically, appellant contends that the blood sample kit certification introduced into evidence was never linked to the actual kit used in drawing appellant's blood. We do not agree. Sections 10-304(c) and (e) provide:
(c) Blood test.  The blood shall be obtained by a qualified medical person using equipment approved by the toxicologist under the Postmortem Examiner's Commission acting at the request of a police officer. The chemical test of blood shall be conducted by a qualified person using equipment approved by the toxicologist under the Postmortem Examiner's Commission in a laboratory approved by that toxicologist.
(e) Proof of approved equipment.  For the purpose of establishing that the test was administered with equipment approved by the toxicologist under the Postmortem Examiner's Commission, a statement signed by the toxicologist certifying that the equipment used in the test has been approved by him shall be prima facie evidence of the approval, and the statement is admissible in evidence without the necessity of the toxicologist personally appearing in court.
Rosemarie Pouliot testified that she drew the blood from appellant using the "legal alcohol police kit." She described the taking of the blood, and identified State's Exhibit No. 6 as the kit used in taking appellant's blood. Karen Irish, a forensic chemist with the Maryland State Police Crime Laboratory, testified that she received and analyzed State's Exhibit No. 6. She said that the instrument used in conducting the test, and the kit, were certified through December 31, 1986. Ms. Irish also stated that she was certified to run blood alcohol determinations, and that the Beck and Dickenson kit "is the one that was used in this." We believe that this evidence shows that the State fully complied with § 10-304(c).
We hold, therefore, that the trial court properly denied appellant's motion to suppress.

II.
Appellant's contention that the evidence was insufficient to convict him of manslaughter by automobile was based on his argument that the results of the blood alcohol test should have been excluded. More specifically, appellant contends that without the test results there could be no finding of gross negligence or of intoxication. In view of our holding in part I of this opinion, we hold that the evidence was sufficient to convict him of manslaughter by automobile.

III.
Appellant complains that the trial court erred in refusing to admit into evidence testimony of the victim's negligence. We do not agree.
The trial court sustained objections to the following questions asked of John Scott Dean: "What time did you meet with Lee Brady?"; "How long were you in the car?"; "Where were you coming from?"; and "Had Brady had as much to drink as you?". We do not believe that answers to these questions would establish negligence on the part of the victim sufficient to defeat the causation found between defendant's gross negligence and the victim's death. In fact, the trial judge probably excluded these questions on the basis of relevancy or because they called for speculation. More importantly, appellant overlooks the fact that the trial court allowed Dean to answer questions concerning the location of the passengers in Brady's car, the activity in the car immediately before the collision, and the fact that beer cans were found in Brady's car.
Moreover, in Maryland, the contributory negligence of the deceased does not operate to bar the criminal liability of the driver found to be grossly negligent. Tipton v. State, 39 Md. App. 578, 588, 387 A.2d 628, cert. denied, 283 Md. 739 (1978). Thus, we believe that even if this evidence had come in, it would not have defeated the overwhelming evidence which established that appellant's gross negligence was the direct and proximate cause of the accident.

IV.
Finally, appellant's posits that he was improperly charged with manslaughter by automobile. More specifically, he contends that under Art. 27, § 388 he may only be charged by way of indictment or warrant. The charging document in this case was a criminal information. We find this contention to be specious.
It is clear from a reading of § 388 that it does not preclude the charging of manslaughter by automobile by criminal information. Rather, it provides that when manslaughter by automobile is charged by indictment or warrant, the formula set forth in the statute is to be used. We point out that Maryland Rule 4-201(c) provides that in the circuit court an offense which is a misdemeanor, as is manslaughter by automobile, may be tried either on an indictment or on an information.
JUDGMENTS AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
NOTES
[1]  Appellant does not question the trial court's finding that the detaining officer had reasonable grounds to believe that appellant was driving while intoxicated.
[2]  Unless otherwise noted, information about the history of Senate Bill 626 of 1982 comes from the notes, reports, and summaries in the Senate and House Bill files.
[3]  The evidence shows that the blood test was taken at 3:15 a.m. According to the victim's death certificate, he was pronounced dead at 3:45 a.m. Md.Cts. & Jud.Proc.Code Ann. § 10-303 (1984) requires that the blood test be administered within two hours of apprehension. Otherwise, the test is inadmissible in prosecutions of § 21-902. The legislature has, however, specifically exempted Art. 27 §§ 388 and 388A from the coverage of this particular exclusionary rule. Hasselhoff v. State, 67 Md. App. 645, 508 A.2d 1030 (1986). Thus, in the present case even if the officers had waited until the victim was pronounced dead by a licensed physician, the test results would have been admissible in the prosecution of Art. 27 § 388, even if taken outside the two hour time limitation.