United States District Court, D. Kansas
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Derek L. Brown, Alan V. Johnson, Sloan, Eisenbarth, Glassman, McEntire & Jarboe, LLC, Topeka, KS, for Plaintiffs.
David W. Davies, III, Kansas Department of SRS, Topeka, KS, for Defendant.
MEMORANDUM AND ORDER
RICHARD D. ROGERS, District Judge.
There are three plaintiffs in this case: Brenda Umholtz, Paul Levy and Tina Bruce. Plaintiff Umholtz was the sole plaintiff when this case was originally filed. Plaintiff Levy was added in an amended complaint filed March 2, 2011 and plaintiff Bruce was added in an amended complaint filed April 6, 2011. All three plaintiffs bring claims under the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § 12101 et seq., and the Rehabilitation Act of 1971, 29 U.S.C. § 794. This case is before the court upon motions for summary judgment by defendant State of Kansas Department of Social and Rehabilitation Services against the claims of each plaintiff and a motion for partial summary judgment filed by plaintiff Bruce.
I. Standards for summary judgment
Summary judgment is proper if the moving party demonstrates that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c). The court views the evidence in a light most favorable to the nonmoving party. Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir.2002). A fact issue is material if its resolution is essential to the proper disposition of a claim. Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir.2001). A factual dispute is " genuine" if " there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998). " While we view the record in the light most favorable to the non-moving party, that party must still identify sufficient evidence requiring submission to the jury to survive summary judgment." Piercy v. Maketa, 480 F.3d 1192, 1197 (10th Cir.2007). In other words, the court may consider evidence produced by the moving party as well as the absence of admissible evidence in favor of an essential element of the non-moving party's claim. Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir.2000).
II. The summary judgment motion against plaintiff Bruce shall be granted in part and denied in part.
A. Plaintiff Bruce's claims and factual background
Plaintiff Bruce is blind. She was employed as a Rehabilitation Counselor II by defendant beginning November 18, 2001. Her job title changed to Human Services Counselor in 2003. She was dismissed from employment effective September 29, 2009 for alleged inefficiency or incompetence. She appealed this dismissal to the Kansas Civil Service Board (" KCSB" ). On December 30, 2010, the KCSB issued a final order which directed that plaintiff Bruce be reinstated with backpay and benefits as a Human Services Counselor with SRS and " be provided assistive technology that is consistently available and fully functioning." The decision of the KCSB was upheld after appeal to the Shawnee County District Court on December 5, 2011. Plaintiff Bruce was reinstated to her position with defendant effective January 22, 2012 and received her backpay. Eventually, plaintiff was also given credit for her accumulated annual leave and sick leave, although plaintiff alleges that this did not happen until August 3, 2012 and that the delay caused her emotional distress.
Plaintiff alleges that she has not been given the duties of a Human Services Counselor and has been relegated to handling solely intake duties as opposed to providing services to clients from the time of their applications through the closure of their cases, as she did prior to her termination. Plaintiff also alleges that she is being forced to use the same outdated technology as she used before her termination, with the exception of a PacMate note taker.
B. Defendant is immune from ADA liability.
Plaintiff Bruce has brought claims under the ADA for discrimination and retaliation. Plaintiff Bruce added the Rehabilitation Act as a basis for discrimination and retaliation claims in the pretrial order. The State of Kansas enjoys immunity under the Eleventh Amendment from being sued in federal court by its own citizens, regardless of whether a plaintiff seeks declaratory or injunctive relief, or money damages.
Steadfast Ins. Co. v. Agricultural Ins. Co., 507 F.3d 1250, 1252 (10th Cir.2007). Defendant is an agency of the State of Kansas and may allege Eleventh Amendment immunity from liability. ANR Pipeline Co. v. Lafaver, 150 F.3d 1178, 1187 (10th Cir.1998) cert. denied, 525 U.S. 1122, 119 S.Ct. 904, 142 L.Ed.2d 902 (1999). In its motion for summary judgment, defendant has asserted this defense against plaintiff's ADA claims.
There are three exceptions to the general rule of Eleventh Amendment immunity: 1) States may consent to suit, waiving immunity; 2) Congress may abrogate the States' Eleventh Amendment immunity when it both unequivocally intends to do so and acts pursuant to a valid grant of constitutional authority; and, 3) under Ex Parte Young, prospective injunctive relief against ongoing violations of federal law may be obtained by bringing suit against state officials in federal court. Chaffin v. Kansas State Fair Board, 348 F.3d 850, 866 (10th Cir.2003)(internal citations and quotations omitted).
Here, plaintiff's argument against Eleventh Amendment immunity is an amalgam of the first and second exceptions. Plaintiff relies upon a statutory provision passed as part of the Rehabilitation Act Amendments of 1986, four years before the ADA was enacted. This statute, 42 U.S.C. § 2000d-7(a)(1), states:
A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal Court for a violation of section 504 of the Rehabilitation Act, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.
Plaintiff contends that because defendant receives federal financial assistance, it has waived its Eleventh Amendment immunity against any claim under a statute such as the ADA which prohibits discrimination.
Plaintiff's employment discrimination claim is brought under Title I of the ADA. Many courts have held that the Eleventh Amendment bars Title I claims against States or state agencies. See Okwu v. McKim, 682 F.3d 841, 845 (9th Cir.2012); Kirby v. Brown, 2013 WL 324280 *2 (E.D.Cal.1/28/2013); Rowe v. New York State Div. of the Budget, 2012 WL 4092856 *3 (N.D.N.Y.9/17/2012); Davis v. Dept. of Corrections, 868 F.Supp.2d 313, 322 (D.Vt.2012); Williams v. Recovery School District, 859 F.Supp.2d 824, 832 (E.D.La.2012); Goodnow v. Oklahoma Dept. of Human Services, 2011 WL 4830183 *1-2 (N.D.Okla.10/12/2011); Elwell v. Oklahoma, 2011 WL 560455 *3 (W.D.Okla.2/8/2011); Scherman v. New York State Banking Dept., 2010 WL 997378 *6 (S.D.N.Y.3/19/2010) aff'd, 443 Fed.Appx. 600 (2nd Cir.10/20/2011); Tarver v. Oklahoma, 2010 WL 944205 *2 (N.D.Okla.3/11/2010); Briggs v. New York State Dept. of Transp., 233 F.Supp.2d 367, 372-73 (N.D.N.Y.2002); Gary v. Georgia Dept. of Human Resources, 323 F.Supp.2d 1368, 1372 (M.D.Ga.2004). Plaintiff's retaliation claim is brought under Title V of the ADA. The same Eleventh Amendment analysis is often applied to Title V claims, particularly when the alleged retaliation is tied to a Title I claim. See Demshki v. Monteith, 255 F.3d 986, 988-89 (9th Cir.2001); Rowe, supra; Johnson v. New York State Dept. of Correctional Services and Community Supervision, 2012 WL 4033485 *3 (W.D.N.Y.9/12/12); Collazo-Rosado v. University of Puerto Rico, 775 F.Supp.2d 376, 384-85 (D.P.R.2011); Davis, 868 F.Supp.2d at 322; Emmons v. City Univ. of New York, 715 F.Supp.2d 394, 408 (E.D.N.Y.2010); McCollum v. Owensboro Comm. & Technical College, 2010 WL 5393852 *3 (W.D.Ky.12/22/2010);
Padilla v. New York State Dept. of Labor, 2010 WL 3835182 *4-5 (S.D.N.Y.9/13/2010); Warren v. Goord, 2006 WL 1582385 *17 (W.D.N.Y.5/26/2006); Cisneros v. Colorado, 2005 WL 1719755 *6 (D.Colo.7/22/2005).
Many of the above-cited opinions make reference to Board of Trustees v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001), where the Court held that Congress did not have the constitutional authority to abrogate Eleventh Amendment immunity from suits for money damages under Title I of the ADA. Most of these cases do not make reference to the provision cited by plaintiff, § 2000d7(a)(1), which is the source of plaintiff's waiver argument.
The Supreme Court has remarked that the test for determining whether a State has waived its immunity is a " stringent one." Sossamon v. Texas, ---U.S. ----, 131 S.Ct. 1651, 1658, 179 L.Ed.2d 700 (2011). " Waiver may not be implied .... [and] will be strictly construed, in terms of its scope, in favor of the sovereign." Id. (interior quotations omitted). Thus, " where a statute is susceptible of multiple plausible interpretations, including one preserving immunity, [courts should] not consider a State to have waived its sovereign immunity." Id. at 1659. Quoting the Supreme Court's opinion in Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 239-40, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985), the Tenth Circuit has observed that " [a] state may waive its Eleventh Amendment immunity ‘ only where stated by the most express language or by such overwhelming implication from the text [of a state statutory or constitutional provision] as [will] leave no room for any other reasonable construction.’ " V-1 Oil Co. v. Utah State Dept. of Public Safety, 131 F.3d 1415, 1421 (10th Cir.1997).
The court does not believe that the phrase in § 2000d-7(a)(1)— " any other Federal statute prohibiting discrimination by recipients of Federal financial assistance" — unequivocally waives the Eleventh Amendment immunity against ADA claims by state agencies who receive federal financial assistance. See Sanders ex rel. Rayl v. Kansas Dept. of SRS, 317 F.Supp.2d 1233, 1242 n. 2 (D.Kan.2004)(§ 2000d-7 does not apply to ADA claims); Gary, 323 F.Supp.2d at 1373 n. 16 (States do not consent to suit on Title I ADA claims by accepting federal funds); Johnson v. State of Louisiana, 2002 WL 83645 *5 n. 14 (E.D.La.1/18/2002)(§ 2000d-7 does not clearly, unambiguously and unequivocally include the ADA within its scope). The statute does not expressly refer to the ADA. The ADA, unlike the statutes specifically listed in § 2000d-7, does not explicitly refer to " recipients of federal financial assistance" or to discrimination by entities " receiving federal financial assistance." Finally, the ADA did not exist when § 2000d-7 was enacted.
Furthermore, Eleventh Amendment immunity is still considered to apply to other statutes which directly or indirectly address discrimination such as 42 U.S.C. §§ 1981 and 1983, in spite of the provisions of § 2000d-7. See Kaimowitz v. Bd. of Trustees, 951 F.2d 765 (7th Cir.1991)(§ 2000d-7 does not apply to § 1983); Miraki v. Chicago State University, 259 F.Supp.2d 727, 731 (N.D.Ill.2003)(§ 1981 does not fall within catch-all provision of § 2000d-7); McCreery v. North Carolina, 2002 WL 32334399 *1 (E.D.N.C.5/4/2002) aff'd, 48 Fed.Appx. 76 (4th Cir.2002)(§ 2000d-7 does not ...