Bullington v. Bedford Cnty.

• Citation: 905 F.3d 467
• Decision Date: 25 September 2018
• Docket Number: No. 17-5647,17-5647
• Parties: Kaleena BULLINGTON, Plaintiff-Appellant, v. BEDFORD COUNTY, Tennessee ; Penny Cooper, in her individual and official capacities, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

905 F.3d 467

Kaleena BULLINGTON, Plaintiff-Appellant,

v.BEDFORD COUNTY, Tennessee ; Penny Cooper, in her individual and official capacities, Defendants-Appellees.

No. 17-5647

United States Court of Appeals, Sixth Circuit.

Argued: May 1, 2018

Decided and Filed: September 25, 2018

ARGUED: Russell L. Leonard, Winchester, Tennessee, for Appellant. W. Carl Spining, ORTALE KELLEY LAW FIRM, Nashville, Tennessee, for Appellees. ON BRIEF: Russell L. Leonard, Winchester, Tennessee, for Appellant. W. Carl Spining, T. William A. Caldwell, ORTALE KELLEY LAW FIRM, Nashville, Tennessee, for Appellees.

Before: Moore, Clay, and Kethledge, Circuit Judges.

MOORE, J., delivered the opinion of the court in which CLAY, J., joined, and KETHLEDGE, J., joined in the result. KETHLEDGE, J. (pp. 478–79), delivered a separate opinion concurring in the judgment only.

KAREN NELSON MOORE, Circuit Judge.

Plaintiff Kaleena Bullington ("Bullington") appeals the district court's grant of judgment on the pleadings to Defendants Bedford County, Tennessee, ("County") and Penny Cooper ("Cooper") (together, "Defendants"). For the following reasons, we VACATE the district court's judgment and REMAND to the district court for further proceedings consistent with this opinion.

I. BACKGROUND

Bullington worked as a dispatcher at the Bedford County Sherriff's Department ("Department") for over eight years. R. 28 (Second Am. Compl. ¶ 5) (Page ID #88). Sometime during this period, Bullington had Hodgkin's Lymphoma

, a form of cancer, which she treated with chemotherapy. Id. The chemotherapy, however, caused neuropathy and scar tissue in Bullington's lungs, so Bullington needed additional treatment. Id. Because of her diagnosis and treatment, Bullington asserts that the Department treated her differently than the other employees. Id. ¶ 6.

Bullington brought this suit in the district court and alleged four causes of action in her second amended complaint: (1) Cooper violated Bullington's constitutional rights under the Fourteenth Amendment to be free from discrimination and retaliation, (2) the County violated her constitutional rights by not providing adequate supervision and training, (3) Defendants violated the Tennessee Human Rights Act, and (4) Defendants violated the Americans with Disabilities Act ("ADA").Id. ¶¶ 14–17 (Page ID #90). For all of these claims, Defendants moved for judgment on the pleadings. R. 21 (Mot.) (Page ID #56). The district court granted the motion and entered a judgment. R. 52 (Order) (Page ID #377); R. 53 (J.) (Page ID #384). Bullington has appealed the district court's judgment. R. 54 (Notice of Appeal) (Page ID #385).

II. DISCUSSION

"We review de novo a district court's grant of a Rule 12(c) motion for judgment on the pleadings." Engler v. Arnold , 862 F.3d 571, 574 (6th Cir. 2017). During this analysis, "[w]e construe the Plaintiffs' complaint in the light most favorable to them, and accept the complaint's allegations as true, drawing all reasonable inferences in favor of the Plaintiffs." Coley v. Lucas Cty. , 799 F.3d 530, 537 (6th Cir. 2015) (citing Crugher v. Prelesnik , 761 F.3d 610, 613 (6th Cir. 2014) ). To overcome a defendant's motion, "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

A. The district court correctly dismissed Bullington's ADA claim.

For an ADA claim, a plaintiff needs to exhaust administrative remedies. See Parry v. Mohawk Motors of Mich., Inc. , 236 F.3d 299, 309 (6th Cir. 2000), cert. denied , 533 U.S. 951, 121 S.Ct. 2594, 150 L.Ed.2d 752 (2001). To exhaust administrative remedies, a plaintiff must file a timely charge with the Equal Employment Opportunity Commission ("EEOC"). See 42 U.S.C. § 2000e-5 ; 42 U.S.C. § 12117(a). If a plaintiff misses a deadline, however, he can argue that equitable tolling applies. Zipes v. Trans World Airlines, Inc. , 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982).

For equitable tolling, there are five factors to examine: "(1) the petitioner's lack of notice of the filing requirement; (2) the petitioner's lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one's rights; (4) absence of prejudice to the respondent; and (5) the petitioner's reasonableness in remaining ignorant of the legal requirement for filing his claim." Hughes v. Region VII Area Agency on Aging , 542 F.3d 169, 187 (6th Cir. 2008) (quoting Barry v. Mukasey , 524 F.3d 721, 724 (6th Cir. 2008) ). "These five factors are not comprehensive, nor is each factor relevant in all cases." Id. at 187–88 (quoting Solomon v. United States , 467 F.3d 928, 933 (6th Cir. 2006) ).

Bullington concedes that she did not file a charge with the EEOC. See Appellant's Br. at 8. She argues, however, that the district court should have waived this requirement because she relied on her prior counsel. According to Bullington, this situation is similar to the scenario in Curry v. United States Postal Service , 583 F.Supp. 334 (S.D. Ohio 1984).

In Curry , the district court stated that "[e]quitable tolling is appropriate where plaintiff's failure to follow proper procedures flows from her reliance on statements or actions of those seemingly empowered by law to implement and enforce any discrimination statutes." 583 F.Supp. at 345. Because the plaintiff in Curry relied on statements that an Equal Employment Opportunity ("EEO") counselor made during the plaintiff's timely consultation, the district court determined that her reliance was reasonable and was excused. Id. at 346.

The district court here correctly determined that Bullington's argument lacks merit. See R. 52 (Mem. at 5) (Page ID #381). In Curry , equitable tolling applied because an EEO counselor, an individual who was "seemingly empowered by law to implement and enforce any discrimination statutes," made the misleading statements to the plaintiff. 583 F.Supp. at 345. Bullington, however, relied on the statements and actions of her prior counsel, who did not have similar power to enforce the ADA. Thus, the district court correctly dismissed Bullington's ADA claim.

B. The district court incorrectly dismissed Bullington's constitutional claims.

Bullington also brings claims against Defendants under 42 U.S.C. § 1983, alleging that they violated her Fourteenth Amendment right to be "free from discrimination and retaliation as a result of her illness/disability." R. 28 (Second Am. Compl. ¶ 14) (Page ID #90). Section 1983 provides a private cause of action for violations of constitutional rights and rights created by federal statutes. Congress, nevertheless, can foreclose a cause of action under § 1983 when the alleged violation is statutory. See Blessing v. Freestone , 520 U.S. 329, 341, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997).

To determine whether Congress has precluded a remedy under § 1983, the "question is congressional intent." Boler v. Earley , 865 F.3d 391, 403 (6th Cir. 2017). Where a statutory enforcement mechanism is "unusually elaborate" and "sufficiently comprehensive," it can demonstrate Congress's intent to foreclose a plaintiff from bringing a statutory claim under § 1983.

Middlesex Cty. Sewerage Auth. v. Nat'l Sea Clammers Ass'n , 453 U.S. 1, 13, 20, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981). The Supreme Court recently outlined how to determine whether a statutory scheme precludes a parallel remedy under § 1983. See Fitzgerald v. Barnstable Sch. Comm. , 555 U.S. 246, 248, 252–53, 129 S.Ct. 788, 172 L.Ed.2d 582 (2009). The Court drew a "distinction between § 1983 claims premised on constitutional violations and those based on statutory violations in determining whether a § 1983 claim is precluded." Boler , 865 F.3d at 402. "In those cases in which the § 1983 claim is based on a statutory right, ‘evidence of such congressional intent may be found directly in the statute creating the right, or inferred from the statute's creation of a comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983.’ " Fitzgerald , 555 U.S. at 252, 129 S.Ct. 788 (quoting Rancho Palos Verdes v. Abrams , 544 U.S. 113, 120, 125 S.Ct. 1453, 161 L.Ed.2d 316 (2005) ). The Court then explained:

In cases in which the § 1983 claim alleges a constitutional violation, lack of congressional intent may be inferred from a comparison of the rights and protections of the statute and those existing under the Constitution. Where the contours of such rights and protections diverge in significant ways, it is not likely that Congress intended to displace § 1983 suits enforcing constitutional rights. Our conclusions regarding congressional intent can be confirmed by a statute's text.

Id. at 252–53, 129 S.Ct. 788 (citation omitted). The Court also cautioned that we "should ‘not lightly conclude that Congress intended to preclude reliance on § 1983 as a remedy for a substantial equal protection claim.’ " Id. at 256, 129 S.Ct. 788 (quoting Smith v. Robinson , 468 U.S. 992, 1012, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984), superseded on other grounds by Handicapped Children's Protection Act, Pub. L. No. 99-372, § 2, 100 Stat. 796 (1986) (codified at 20 U.S.C. § 1415 ) ).

We have not squarely decided whether plaintiffs can use § 1983 to enforce the ADA. Other circuits, however, have held that the ADA does preclude § 1983 claims for violations of the statute. See, e.g. , Williams v. Pa. Human Relations Comm'n , 870 F.3d 294, 300 (3d Cir. 2017) (stating that "every circuit to consider this exact question has held that, while a plaintiff may use § 1983 ‘as a vehicle for vindicating rights independently conferred by the...