Opinion
Case No. 5:02-CV-1427.
October 23, 2002
ORDER, [Resolving Doc. No. 14]
On September 27, 2002, the Defendant Auditor of the State of Ohio (Ohio Auditor) filed a motion to dismiss the plaintiff's first amended complaint with prejudice under Rule 12(b)(1) and 12(b)(6) of the FED. R. CIV. P. [Doc. No. 14]. After reviewing the facts in the light most favorable to the nonmoving party, this Court grants the defendant's motion to dismiss all the plaintiff's claims.
I. Facts
Plaintiff Paula Adam ("Adam") was employed by the Ohio Auditor for approximately twenty years. Prior to April 2000, Adam had a successful work record and received positive job performance evaluations. In April 2000, Adam suffered from a medical condition that required her to take a disability leave of absence. On June 6, 2000, Adam returned to work and her employer was aware of her disability. After June 6, 2000, Adam began to receive negative job performance reviews. Adam argues that Ohio Auditor gave her more difficult work assignments and down-graded her job performance in an effort to discriminate, harass, and retaliate against her. Adam claims her supervisors told her that nobody wanted to work with her. On October 18, 2000, the Ohio Auditor issued a written reprimand to Adam for poor work performance. On February 14, 2001, the Ohio Auditor suspended Adam for three days for alleged neglect of duty, incompetence, and inefficiency. On April 24, 2001, during a pre-disciplinary conference, Adam complained that several of her supervisors were discriminating against her based on her disability in violation of the Americans with Disabilities Act.
Adam claims that the harassment increased after her April 24th complaint. On May 11, 2001, the Ohio Auditor again suspended Adam for neglect of duty, incompetence, and inefficiency. Shortly after her May suspension, Adam quit. Adam claims that the Ohio Auditor's discrimination amounted to a constructive discharge. She contends that the Ohio Auditor's allegations that she had a poor work performance were false and based on retaliation. She also argues that the disciplinary actions taken against her were designed to discriminate, harass, and retaliate against her for raising a disability discrimination claim. Adam sued the Ohio Auditor for violating her rights under 42 U.S.C. § 2000e, et seq. and 42 U.S.C. § 12101, et seq. [Doc. No. 10]. Ohio Auditor in response, has filed a motion to dismiss under Rule 12(b)(1) and 12(b)(6) of the FED. R. CIV. P. [Doc. No. 14]. Adam opposes this motion [Doc. No. 16].
II. Standard of Review
The defendant seeks dismissal of Adam's discrimination claims under Rule 12(b)(1), arguing that this Court lacks subject matter jurisdiction. Motions to dismiss for lack of subject matter jurisdiction fall into two general categories: facial attacks and factual attacks. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). A facial attack is a challenge to the sufficiency of the pleading itself. Defendant presents a facial attack in this case. On such a motion, the court must take the material allegations of the petition as true and construe them in the light most favorable to the nonmoving party. Scheuer v. Rhodes, 416 U.S. 232, 235-37 (1974).
The defendant also seeks dismissal under FED. R. CIV. P. 12(b)(6). A court properly grants a motion to dismiss under Rule 12(b)(6) only if it appears that the plaintiff can prove no set of facts that would entitle him to relief. Hishon v. King Spalding, 467 U.S. 69, 73 (1984). The complaint is construed in the light most favorable to the plaintiff and the court accepts as true all of the plaintiff's well-pled factual allegations. Id.
III. Discussion A. Administrative Charge
The plaintiff claims that the Ohio Auditor violated her rights under Title VII, 42 U.S.C. § 2000(e). Federal courts have subject matter jurisdiction on Title VII claims only if the claimant first unsuccessfully pursues administrative relief. Ang v. Proctor Gamble Co., 932 F.2d 540, 545 (citing Love v. Pullman Co., 404 U.S. 522 (1972)). Here plaintiff Adam, did seek administrative relief. She filed an administrative complaint and received a "right to sue letter" from the Equal Employment Opportunity Commission ("EEOC"). However, the plaintiff checked the boxes for "retaliation" and "disability" and claimed her employer discriminated against her "in violation of the Americans with Disabilities Act" in her administrative charge. Adam did not check the box for "race, color, sex, religion, or national origin." Title VII specifically prohibits employers from:
"discriminat[ing] against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex, or national origin . . ."42 U.S.C. § 2000e-2(a)(1) (emphasis added). Title VII does not prohibit discrimination based on disability. See id. The Sixth Circuit has already pronounced, "The clearly stated rule in this Circuit is that the EEOC's complaint is `limited to the scope of the EEOC investigation reasonably expected to grow out of the charge of discrimination.'" EEOC v. Baily Co., 563 F.2d 439, 446 (6th Cir. 1977). Adam's EEOC charge alleged disability discrimination. Here, in the administrative charge Adam did not check the box for discrimination based on: "race, color, religion, sex, or national origin." Since Adam did not allege any discrimination prohibited by Title VII, under the Sixth Circuit's rational in Baily Co., she does not have a Title VII claim. Since the plaintiff has failed to plead a cognizable claim under Title VII, her Title VII claims must be dismissed because she failed to state a claim upon which relief can be granted. FED. R. CIV. P. Rule 12(b)(1)
B. Disability Claims
Adam claims that the Ohio Auditor violated her rights under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, by discriminating against her based on her disability and retaliating against her when she brought this alleged discrimination to their attention. The defendant, Ohio Auditor, is an agency of the state of Ohio. The defendant claims it is immune from suits under the ADA based on the Eleventh Amendment to the United States Constitution. This Court agrees.
The Eleventh Amendment to the United States Constitution reads:
The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of a Foreign State.
U.S. CONST. AMEND. XI. This immunity is far reaching. Thiokol Corp. v. DOT, 987 F.2d 376, 381 (6th Cir. 1993). It bars all suits, whether for injunctive, declaratory or monetary relief, against the state and its departments, Pennhurst State School Hospital v. Halderman, 465 U.S. 89, 101-01 (1984), by citizens of another state, foreigners or its own citizens. Hans v. Louisiana, 134 U.S. 1, 33 (1890). The Eleventh Amendment also bars suits against state officials sued in their official capacity for monetary relief but does not bar suits against state officials sued in their official capacity for prospective injunctive or declaratory relief. Ex Parte Young, 209 U.S. 123 (1908).
However, the Eleventh Amendment does not apply in two cases: 1) If the state has waived its immunity from suit in federal court, and/or 2) If Congress has abrogated the state's immunity. Thiokol, at supra. The plaintiff has made no argument that Ohio has waived its immunity. Furthermore, the United States Supreme Court has held that Congress did not abrogate the states' Eleventh Amendment immunity by passing the ADA.
The United State Supreme Court has already ruled that section I of the ADA did not abrogate the states' sovereign immunity. Board of Trustees v. Garrett, 531 U.S. 356, 374 (2001). The plaintiff argues that the Supreme Court's holding in Garrett was limited to section I and does not apply to section V of the ADA. Adam urges this Court to rule that Congress abrogated the states' Eleventh Amendment immunity with regard to section V of the ADA. Section V prescribes the penalties for retaliation under the ADA. If this Court accepts the plaintiff's argument, it would follow that the plaintiff would be allowed to sue the Ohio Auditor for disability retaliation claims. This Court rejects the plaintiff's argument.
Although this Court recognizes and follows the U.S. Supreme Court's Eleventh Amendment jurisprudence, this Court, along with many respected academic legal scholars, questions its wisdom.
The Supreme Court's recent Eleventh Amendment immunity decisions, including Board of Trustees v. Garrett, "raise deep and potentially disturbing questions of constitutional principle." Jed Rubenfeld, The Anti-Anti-discrimination Agenda, 5 YALE L.J. 1141, 1149 (2002). "Garrett, . . . joined a string of recent decisions that have given the Eleventh Amendment new constitutional bite." Id. "The Eleventh Amendment bars federal court jurisdiction over suits against a state brought by "Citizens of another State." The Court found in Garrett that the plaintiff was barred by the Eleventh Amendment from bring an ADA claim against the state of Alabama. 531 U.S. 356 (2001). Readers who were familar with the language of the Eleventh Amendment, but unfamiliar with the Garrett facts would think that the plaintiff was a citizen of another state. Yet, the plaintiff was a citizen of Alabama. The Garrett Court read the word "another" in the Eleventh Amendment to mean "another" as well as "the same". Rubenfeld, supra at 1151. "Once upon a time, judicial conservatives criticized those who saw in the Constitution words that were not there like, "privacy." Id. The "Garrett [Court] goes one better." Id. "Garrett reads a word that is in the Constitution to mean its opposite." Id.
The Eleventh Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment. Garret, at 365. When Congress acts under § 5 to enforce the Fourteenth Amendment, Congress' actions must be proportional and congruent to a history of state unconstitutional behavior. City of Boerne v. Flores, 521 U.S. 507, 520 (1997). The Supreme Court in Garret, restated the test to determine whether a Congressional exercise of § 5 power meets the proportionality and congruency test. The first step of the proportional and congruency test is to identify with some precision the scope of the constitutional rights at issue. Garrett at 365. In the next step, "we examine whether Congress identified a history and pattern of unconstitutional employment discrimination by the States' against the disabled." Id. at 368. There is no need to consider the first part of the test, because the Supreme Court already ruled in Garrett that the ADA failed the second part. The Supreme Court wrote, "The legislative record of the ADA, however, simply fails to show that Congress did in fact identify a pattern of irrational state discrimination in employment against the disabled." Id. at 368. The Ninth Circuit has also taken this view, holding that the Supreme Court's decision in Garrett applies to section V of the ADA. Demshki v. Monteith, 255 F.3d 986, 989 (9th Cir. 2001). This Court holds that the state of Ohio is immune from suits under section V of the ADA, because Congress did not abrogate the states' Eleventh Amendment immunity with its passage.
C. First Amendment Claims
Finally, the plaintiff claims that the section V anti-retaliation provisions of the ADA involve First Amendment interests. Adam alleges that her free speech rights were violated because she was engaging in protected speech when she complained to her employers that she was being discriminated against in violation of the ADA. To establish this claim, Adam must show that (1) she was engaged in protected activity; (2) the Ohio Auditor's adverse action caused her to suffer an injury that would likely chill a person of ordinary firmness from continuing to engage in protected activity, and (3) the adverse action was motivated at least in part as a response to the exercise of the plaintiff's rights. Leary v. Daeschner, 228 F.3d 729, 737 (6th Cir. 2000). First of all, it is important for this Court to note that the plaintiff did not meet any of the pleading requirements for a violation of First Amendment rights under Leary. Notwithstanding this defect in the plaintiff's complaint, this Court finds that Adam's speech was not entitled to constitutional protection.
To determine whether a public employee's speech is entitled to constitutional protection, we apply a two-part inquiry. Farmer v. Cleveland Public Power, 295 F.3d 593 (6th Cir. 2002). First, the plaintiff must establish that his or her speech was related to a matter of public concern. Id. (quoting Connick v. Myers, U.S. 138, 146 (1983)). The second stage of the inquiry, which occurs only if the speech in question involved a matter of public concern, requires balancing the plaintiff's free speech interests against the government's interests as an employer. Id. Speech touches upon matters of public concern where it can "be fairly considered as relating to any matter of political, social, or other concern to the community . . ." Id. These considerations differentiate between an employee's speech that touches upon matters of public concern and speech that is of particular interest only to the speaker. Id. The latter, unlike the former, cannot form the basis of a First Amendment retaliation lawsuit. Id.
The plaintiff's speech does not meet the first requirement for public employees' constitutionally protected speech. The plaintiff's speech concerned her personal complaint that the Ohio Auditor was discriminating against her in violation of the ADA. This type of speech is of a highly personal nature and does not touch upon the type of "political, social, or other concern of the community . . ." that the Supreme Court was referring to in Connick. Therefore, this Court finds no merit in the plaintiff's claim that she engaged in constitutionally protected speech in relation to section V of the ADA.
IV. Conclusions
For the foregoing reasons, this Court grants the defendant's motion to dismiss all the plaintiff's claims under Rule 12(b)(6) of the FED R. CIV. P.
IT IS SO ORDERED.