Summary
recognizing that the administrative process before the Indiana Civil Rights Commission can be "bypassed," but only if all parties consent in writing to proceed directly to a court of law, otherwise, "there is no private right of action"
Summary of this case from Beckett v. Koetter Woodworking, Inc. (S.D.Ind. 3-25-2011)Opinion
Cause No. IP99-0856-C-T/G.
April 5, 2000.
B. Amy Ficklin Debrota Young Riley Dudley Debrota 277 East 12th Street Indianapolis, IN 46202.
Thomas R. Schultz Locke Reynolds Llp 201 N. Illinois St., Suite 1000 P.O. Box 44961 Indianapolis, IN 46244-0961.
Kenneth B. Siepman Locke Reynolds Llp 201 N. Illinois St., Suite 1000 P.O. Box 44961 Indianapolis, IN 46244-0961.
ENTRY GRANTING RECONSIDERATION AND DENYING MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
On October 29, 1999, the Plaintiff moved for leave to amend his complaint. His motion was timely under the Case Management Plan, and the proposed amendment appeared to be quite innocuous. The motion for leave to amend states that the reason for the amendment was "to include a statute citation which was inadvertently omitted from the Complaint, specifically Indiana Code 22-9-1-3, et seq." The motion also contained the assurance that:
The factual allegation and the legal theories under which Plaintiff filed his original Complaint will not be changed by this amendment. Defendant's (sic) will not be prejudiced in anyway (sic) by the Amended Complaint.
Based on those representations, without even giving the Defendants an opportunity to respond, the court granted the motion.
However, after having the benefit of the objections to the amendment provided by the Defendants and additional filings by the Plaintiff, it is clear that there is much more to the amendment than the motion for leave suggested and much less accuracy to the assurances contained in the motion than the court would have hoped. Nonetheless, the court has now carefully scrutinized the proposed amendment (which has now been superseded by a proposed Second Amended Complaint — more about that later) and realizes that the addition of a second theory of recovery under the Indiana Civil Rights Law (ICRL), Indiana Code § 22-9-1-1 et seq., would be a futile addition to this litigation, doomed to failure, and that the Defendants would be prejudiced by having to defend against a theory so clearly destined to fail.
On October 12, 1999, the court held a telephone conference with counsel for the purposes of discussing the CMP and selecting a trial date. The first motion for leave to amend was filed a couple of weeks later, on October 29, 1999. It contained the assurances mentioned above that nothing of substance was added by the amendment. As of that time, both the original complaint and the portion of the CMP describing the Plaintiff's factual assertions and legal theories made reference to what he contended were violations of the ADA. There were no references, by citation or description, to any theories of violations of state law. Nor were there any references to a jurisdictional basis for such a claim such as 28 U.S.C. § 1367, as a claim supplemental to the federal ADA violation alleged. The proposed amended complaint did contain a citation to Indiana Code § 22-9-1-1 et seq., but it did not allege any violation of the acts prohibited by that statutory scheme. Nor did it allege a jurisdictional basis for bringing a state law based claim in federal court, such as the supplemental jurisdiction of the court. The Plaintiff's preliminary contentions, filed several days after the first motion for leave to amend, also was void of any reference to violations of the ICRL.
The court has a hazy recollection of discussing the difficulties faced by the Plaintiff in this case brought under the Americans with Disabilities Act (ADA) in light of recent decisions by the United States Supreme Court — but there is no record of that discussion, so the court does not consider that in ruling on these motions.
Shortly after the court granted leave to amend, it received the objection by Defendant State of Indiana Public Employees' Retirement Fund (PERF) to the amendment. This objection pointed out that Plaintiff was attempting to amend his complaint by adding a state law complaint under the ICRL. PERF argued that such an amendment would be futile as against PERF, as it would be barred by the Eleventh Amendment to the United States Constitution and that the Plaintiff failed to file a notice of claim as required by state law. The court then issued an order indicating that the objection would be treated as a motion to reconsider and setting a briefing schedule. On November 12, 1999, the Plaintiff filed a motion for leave to file a second amended complaint and a response to the objection to his earlier motion for leave to amend. The second amended complaint made it clear that the Plaintiff was attempting to add a cause of action based on a violation of the state civil rights law, and for the first time, made a reference to the
However, the Plaintiff's Motion for Leave to File Second Amended Complaint and Response boldly asserts that:
The factual allegations and the legal theories under which Plaintiff filed his original Complaint will not be changed by this amendment. The Indiana law cited is merely the state law equivalent of the federal law cited. Defendants will not be prejudiced in any way by the Second Amended Complaint.
This statement may be true as to the factual allegations. However, the disingenuousness of it with respect to the legal theories will be discussed below.
Shortly thereafter, on November 15, 1999, the Franklin Fire Department (FFD) filed a motion to reconsider, also pointing out that it had been deprived of an opportunity to object to the motion for leave to amend. FFD's motion pointed out additional deficiencies in Plaintiff's new theory which would make the addition of it an act of futility, including that the ICRL does not create a private cause of action, at least not without consent of the parties, and even if it did, the Plaintiff did not pursue a claim under that law within the applicable statute of limitations. Rather than addressing the FFD's principal point about the absence of a private cause of action, the Plaintiff skirts around the issue by suggesting that a working arrangement between the EEOC, where he made his complaint and the ICRC, the agency responsible for investigating and prosecuting state law claims of the sort he asserts, satisfies his need to file the claim within 180 days.
Counsel for the Plaintiff does present distracting arguments about whether there has been exhaustion of the administrative process because of the handling of his appropriate jurisdictional basis of a supplemental state law claim, 28 U.S.C. § 1367 complaint by the EEOC. This is not a helpful presentation because it ignores the critical issue of whether the Plaintiff has a cause of action at all under Indiana Code § 22-9-1-1 et seq. Moreover, when the court was finally provided with Plaintiff's EEOC filing through FFD's reply, it became apparent that Plaintiff made no reference to the ICRL or its protections in that complaint. It was strictly a federal ADA claim.
The amendment of the Complaint ultimately sought by the Plaintiff is futile. It is clear from the Plaintiff's Motion for Leave to file Second Amended Complaint (filed on November 12, 1999) that what he wants to do is add a state law claim (under the supplemental jurisdiction of the court) to his original federal claim under the Americans with Disabilities Act. This would bring a whole new theory into this case. He attempts to assert the state law claim under Indiana Code § 22-9-1-3 et seq. His efforts are hopeless for several reasons.
True enough, there are some similarities between the "disability" portion of the ICRL and the ADA. However, even the concept of "disability" is defined quite differently under the different federal and state legislative schemes. There are numerous other legal differences as well which the court will not spend time discussing. Suffice it to say that there are more differences than similarities.
The new cause of action he seeks to bring is based on the ICRL, Indiana Code § 22-9-1-1 et seq. This law is a self-contained series of statutes enacted by the Indiana Legislature for the purpose of combating many types of discrimination against classes and individuals, including those suffering from what it defines as "disability." IND. CODE §§ 22-9-1-2, 22-9-1-3(r). The ICRL establishes an administrative process through which claims of discrimination are investigated and prosecuted. IND. CODE §§ 22-9-1-6, 22-9-1-11. The Indiana Civil Rights Commission (ICRC) is empowered to conduct hearings and award both injunctive and monetary relief on behalf of those individual members of protected classes who have been discriminated against. IND. CODE §§ 22-9-1-6(i), -6(k), 22-9-1-11.
Ordinarily, such hearings are conducted before an administrative law judge appointed by the ICRC. See IND. CODE § 22-9-1-6(j) (giving the authority to the commission to appoint administrative law judges when deemed necessary). The final determination of the ICRC is subject to judicial review, but only the limited type of review allowed administrative determinations. IND. CODE §§ 22-9-1-6(l), 22-9-8. The administrative process of the ICRL can be bypassed, but only in one narrow circumstance: if both the party making the complaint and the party responding to it agree in writing to have the matter decided in a court of law. IND. CODE § 22-9-1-16 (emphasis added). Otherwise, there is no private right of action, and in fact, no cause of action under the provisions of law that the Plaintiff cites as the basis of his state law claim.
The Plaintiff has not alleged that the ICRC process has either been completed, allowing judicial review, or bypassed. Nor could he. Nor can he possibly prove such things. It is evident from the submission of the parties that there has been no ICRC administrative hearing regarding the Plaintiff's allegations of disability discrimination and there has been no waiver of that process, at least not by the Defendants, so that any dispute under that state law can go directly to court. Consequently, the Plaintiff cannot bring a cause of action against any of these Defendants in this court (or any other, for that matter) pursuant to Indiana Code § 22-9-1-1 et seq.
As to Defendant PERF, the Plaintiff's effort to amend the Complaint to add a state law theory is even more flawed. Besides the reason discussed above barring a claim under the cited Indiana law, the Eleventh Amendment to the United States Constitution stands in the way of this court exercising jurisdiction over a such a claim against PERF.
This Amendment provides that:
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 any Foreign State.
U.S. CONST. amend. XI. Thus, claims cannot be brought against a State (or one of its agencies) in a federal court without consent by the State to that jurisdiction. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (1984). There has been no such consent alleged here, nor could there be.
The Plaintiff may have additional Eleventh Amendment concerns about his ADA claim against PERF. See Erickson v. Board of Governors, No. 98-3614, 2000 WL 307121 (7 Cir. Mar. 27, 2000).
Consequently, amendment of the Complaint as proposed by the Plaintiff would be a waste of time. His efforts to add a state law theory under Indiana Code § 22-9-1-1 et seq. take him nowhere because he would lose those claims as a matter of law. There is no point in wasting the time of the Defendants or the court on that inevitable result. Therefore, the previous permission granted for the first amendment is now RECONSIDERED, REVOKED and DENIED. The request for the second amendment is also DENIED.
With this result, there is no need to discuss the Defendants' assertions that the ICRC process has not been exhausted and that the state was not provided with timely notice of the claim pursuant to Indiana Code § 34-13-3-6.
ALL OF WHICH IS ORDERED this 5 day of April 2000.