United States District Court, D. Kansas
MARGARET M. QUIDACHAY, Plaintiff,
KANSAS DEPARTMENT OF CORRECTIONS, and the STATE OF KANSAS, Defendants.
MEMORANDUM AND ORDER
MARTEN CHIEF UNITED STATES DISTRICT JUDGE.
Quidachay filed suit against the Kansas Department of
Corrections (“KDOC”) and the State of Kansas,
alleging disability discrimination and retaliation under
Section 504 of the Rehabilitation Act of 1973. Before the
court is defendants' motion to dismiss pursuant to Rule
12(b)(2), or alternatively, Rule 12(b)(6). Dkt. 6. For the
reasons stated below, the court denies the motion.
court summarizes the First Amended Complaint
(“FAC”) as follows. Quidachay has a college
degree and has substantial experience working in the
corrections field. FAC at ¶ 2. From February 11, 2008 to
August 1, 2012, she worked as a corrections officer at the El
Dorado Correctional Facility (EDCF), which defendants own and
operate. Id. at ¶ ¶ 5 and 12; Dkt. 1,
Complaint, Ex. A. Defendants allegedly fired plaintiff in
2012 after she asked to be posted near a restroom to
accommodate her Crohn's disease. FAC at ¶ 13. She
appealed her termination to the civil service board of
Kansas. During that process, she and the EDCF warden reached
an agreement - withdrawal of her grievance for an upgrade in
her performance evaluation to “Meets
Expectations” and a change in her termination status to
resigned. Pursuant to the agreement, Quidachay withdrew her
grievance and resigned her employment in July 2012.
then filed a lawsuit against the State of Kansas and various
individuals in Butler County District Court for violations of
the Americans with Disability Act (“ADA”).
Id. at ¶ 17; Quidachay v. Dept. of
Corrections, et al, 51 Kan. App.2d 278 (March 13, 2015).
Although some of the claims have been dismissed, that case
remains pending in Butler County District Court.
August 14, 2013, until November 18, 2015, plaintiff applied
for 77 jobs: 72 were with the KDOC at various corrections
facilities including EDCF; and 5 were with the Kansas State
Department of Children and Families (KDCF). Dkt. 1,
Complaint, Ex. A. According to plaintiff, she was denied all
77 jobs as a result of defendants' unlawful policy of
“blackballing” her. FAC at ¶ 20. Defendants
allegedly prevented plaintiff from obtaining subsequent
employment with the State of Kansas by maintaining her
personnel records in a computer system that falsely indicated
“she was terminated on the basis of her disability and
that she had been ‘Dismissed.'” Id.
at ¶ 22. She avers that state agencies reviewed and
relied on those records in refusing to hire her. Id.
at ¶¶ 21-25.
seek dismissal on two grounds: 1) this court lacks personal
jurisdiction over them; and 2) plaintiff has failed to state
a plausible claim for relief under the Rehabilitation Act.
With respect to the latter, defendants contend that plaintiff
has failed to allege that: a) she was disabled during the
relevant time period; b) she was otherwise qualified for the
positions sought; c) she was not hired solely because of her
disability; and d) a causal relationship linking KDOC to the
refusals to hire.
Rule 12(b)(2) and KDOC's Capacity to be Sued
argue that the KDOC lacks the capacity to be sued, thus this
court lacks personal jurisdiction over it and the suit should
be dismissed under Rule 12(b)(2). The court disagrees.
Defendants' acceptance of federal funds acts as a waiver
of sovereign immunity and renders any arguments against
capacity ineffectual. See 42 U.S.C. §
2000d-7(a)(1) (“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 ...”); Robinson v.
Kansas, 295 F.3d 1183, 1190 (10th Cir. 2002) (joining
sister circuits in holding that states and state entities
waive sovereign immunity by accepting federal financial
assistance as specified in 42 U.S.C. § 2000d-7);
Arbogast v. Kansas, No. 13-CV-4007-JAR, 2014 WL
1308915, at *6-7 (D. Kan. Mar. 31, 2014), aff'd in
part, dismissed in part sub nom. Arbogast v. Kansas,
Dep't of Labor, 789 F.3d 1174 (10th Cir. 2015).
Rule 12(b)(6) and Claims under the RA
504 of the Rehabilitation Act states that “[n]o
otherwise qualified individual with a disability ... shall,
solely by reason of her or his disability, be excluded from
the participation in, be denied benefits of, or be subjected
to discrimination under any program or activity receiving
Federal financial assistance.” 29 U.S.C. § 794(a).
To state a discrimination claim under the Rehabilitation Act,
plaintiff must show that: 1) she is disabled under the Act;
2) she would otherwise be qualified for the job; 3) the
program receives federal financial assistance; and 4) the
program has discriminated against the plaintiff.
Wilkerson v. Shinseki, 606 F.3d 1256, 1262 (10th
Cir. 2010). The parties do not dispute that element 3 has
first argue that plaintiff's claims based on the refusals
to hire that occurred before July 11, 2014, are barred by the
statute of limitations. Defendants urge dismissal of these
claims and exclusion of the related allegations from the
complaint (Complaint, Ex. A., ¶¶ A-BB). Dkt. 17 at
2. Because plaintiff clarified that she does not seek relief
for refusals to hire that are outside the statute of
limitations or that were genuinely available only to internal