Cable v. Department of Developmental Services

• Citation: 973 F.Supp. 937
• Decision Date: 15 July 1997
• Docket Number: No. SA CV 96-1190-GLT[cc].,SA CV 96-1190-GLT[cc].
• Parties: William CABLE, M.D., Plaintiff, v. DEPARTMENT OF DEVELOPMENTAL SERVICES OF THE STATE OF CALIFORNIA, et al., Defendant.
• Court: U.S. District Court — Central District of California

Page 937

973 F.Supp. 937

William CABLE, M.D., Plaintiff, v. DEPARTMENT OF DEVELOPMENTAL SERVICES OF THE STATE OF CALIFORNIA, et al., Defendant.

No. SA CV 96-1190-GLT[cc].

United States District Court, C.D. California, Southern Division.

July 15, 1997.

Francis X. Hardiman, Hardiman & Cahill, Santa Ana, California, for Plaintiff.

Thomas Scheerer, Deputy Attorney General, Los Angeles, California, for Defendants.

ORDER ON DEFENDANT'S MOTION TO DISMISS

TAYLOR, District Judge.

The motion to dismiss is granted in part and denied in part. Among other things, the court holds (1) exhaustion of administrative remedies is not required before bringing an ADA Title V retaliation claim for objecting to unlawful practices under ADA Title II, and (2) a California public entity's failure to provide services to disabled persons in the "most integrated setting appropriate" is actionable under ADA Title II.

I. BACKGROUND

It is the stated legislative policy of the State of California to "mainstream" developmentally disabled persons — that is, transition them from hospitals into "natural community settings." See Cal. Welf. & Inst. § 4500 et seq. Plaintiff William Cable, M.D., the Chief of the Medical Staff at Fairview Developmental Center, contends the community placement program is being administered improperly, and he has been retaliated against because of his protests.¹

Plaintiff contends Defendants Department of Developmental Services and Fairview have chosen the most severely developmentally disabled persons for community placement because they either are unable to object to the placement or do not have parents or guardians to object on their behalf. He further contends many of the community facilities where Fairview patients have been placed are unable to adequately care for the needs of the severely developmentally disabled, and cites recent studies finding high morbidity and mortality rates after community placement.

According to Plaintiff, after he objected to the planned community placement of some of his patients, he was subjected to various forms of retaliation. Particularly, he alleges he received official reprimands and a 10-day suspension without pay, was removed from the adult care ward and assigned to a pediatric care ward, and was removed from the Behavior Management Committee and Pharmacy and Therapeutics Committee. Plaintiff claims his office was moved to an asbestos contaminated hallway and other punitive action was taken in additional retaliation for voicing his concerns.

Plaintiff sues the state's Department of Developmental Services, Fairview Developmental Center, and others for violations against him of the Americans With Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., based on the claimed retaliation.² Defendants move to dismiss, contending that the claim is barred under the doctrine of res judicata and that Plaintiff fails to state an ADA claim.

II. DISCUSSION

A. Res Judicata

Plaintiff bases his claims partly on two adverse actions taken by the State Personnel Board under California Government Code sections 19570-88. Plaintiff was served with a Notice of Adverse Action charging him with inexcusable neglect of duty, discourteous treatment of the public and other failures of good behavior. Plaintiff received another Notice of Adverse Action charging him with dishonesty, inexcusable neglect of duty and using confidential information for private gain. After the second notice Plaintiff was suspended for ten days without pay. Plaintiff alleges each adverse action was taken in retaliation for speaking out against patient placement decisions.

Defendants contend each of these adverse actions is res judicata. Relying on Miller v. County of Santa Cruz, 39 F.3d 1030 (9th Cir.1994), Defendants argue Plaintiff's failure to appeal either action renders each a final judgment and beyond review by this Court. The Court disagrees.

For a prior administrative or judicial decision to have preclusive effect, the judgment must have been rendered in proceedings meeting due process standards. The party against whom the judgment was rendered must have had a "full and fair opportunity" to litigate its claims or defenses before an impartial tribunal. Kremer v. Chemical Constr. Corp., 456 U.S. 461, 480-82, 102 S.Ct. 1883, 1897, 72 L.Ed.2d 262 (1982); Miller, 39 F.3d at 1033 (holding administrative proceedings may be given preclusive effect only when an agency acts in a judicial capacity and resolves issues of fact "which the parties have had an adequate opportunity to litigate" (quoting Plaine v. McCabe, 797 F.2d 713, 721 (9th Cir.1986))).

Neither of the Notices of Adverse Action issued by the State Personnel Board is res judicata for purposes of this lawsuit. The initial proceedings by the Personnel Board did not provide Plaintiff with an opportunity to litigate the issues. There was no presentation of witnesses or evidence. Plaintiff could have contested the adverse actions by proceeding to a full evidentiary hearing, but he chose not to do so and filed this action instead. Had Plaintiff proceeded to the next administrative step of a contested hearing, it would likely have had res judicata effect. Miller, 39 F.3d at 1033. However, by choosing not to proceed administratively in a contested hearing and filing suit instead, Plaintiff is not bound by res judicata. Id. at 1034 n. 3.

B. Americans With Disabilities Act

In Counts One, Two and Three of his Second Amended Complaint, Plaintiff alleges claims for unlawful retaliation under the ADA. Plaintiff alleges he was retaliated against for speaking out against practices he contends are unlawful under the ADA.

Under Title V of the ADA, it is unlawful to retaliate against an individual because "such individual has opposed any act or practice made unlawful" under the ADA. See 42 U.S.C. § 12203(a). To establish a prima facie case of retaliation, an employee must show "(1) that he or she engaged in activity protected by the statute; (2) that the employer ... engaged in conduct having an adverse impact on the plaintiff; and (3) that the adverse action was causally related to the plaintiff's exercise of protected rights." Henry v. Guest Services, Inc., 902 F.Supp. 245, 251 (D.D.C.1995) (quoting Passer v. American Chemical Society, 935 F.2d 322, 331 (D.C.Cir.1991)).

Defendants move to dismiss Plaintiff's ADA claims on several grounds. First, they claim Plaintiff failed to exhaust his administrative remedies. Second, they claim Plaintiff has not alleged he engaged in conduct protected by the ADA. Third, Defendants claim Plaintiff did not suffer an adverse action sufficient to state a retaliation claim. Last, Defendants contend there can be no individual liability under the ADA.

1. Exhaustion of Administrative Remedies

Defendants claim Plaintiff cannot pursue his retaliation claims under Title V of the ADA because he has failed to exhaust his administrative remedies. According to Defendants, "[c]ourts have repeatedly held that persons claiming discriminatory employment practices in violation of Title I of the ADA must exhaust their administrative remedies." Motion to Dismiss at 12. Defendants encourage the Court to extend this exhaustion requirement to Plaintiff's claim he suffered retaliation for objecting to practices made unlawful under Title II of the ADA.

In enacting Title V, Congress created a set of remedies and procedures which depends on the title of the ADA underlying the retaliation claim. Title V provides, "the remedies and procedures available under sections 12117, 12133, and 12188 of this title shall be available to aggrieved persons for violations of subsections (a) and (b) of this section, with respect to subchapter I, subchapter II and subchapter III of this chapter, respectively." 42 U.S.C. § 12203(c) (emphasis added). Thus, from the language of the statute, it appears Congress intended the enforcement remedies and procedures established for Title II violations, see 42 U.S.C. § 12133, to be applied to persons who have suffered retaliation for objecting to acts or practices which violate Title II.³

Courts have consistently held there is no exhaustion requirement under Title II of the ADA. See, e.g., Wagner v. Texas A & M University, 939 F.Supp. 1297, 1309 (S.D.Tex. 1996); Roe v. County Comm'n of Monongalia County, 926 F.Supp. 74, 77 (N.D.W.Va. 1996). See also Smith v. Barton, 914 F.2d 1330, 1338 (9th Cir.1990) (holding a plaintiff need not exhaust administrative remedies before filing suit under the Section 504 of the Rehabilitation Act). Here, Plaintiff's Title V claims rely on acts and practices Plaintiff alleges were unlawful under Title II of the ADA. Thus, Plaintiff was not required to exhaust administrative remedies before filing this action.

2. Protected Activity

Defendants contend the alleged conduct Plaintiff has opposed does not "fairly fall within the protection of" the ADA, therefore, Plaintiff cannot state a claim for retaliation. See Learned v. City of Bellevue, 860 F.2d 928, 932 (9th Cir.1988) (holding in the context of Title VII, "the opposed conduct must fairly fall within the protection of Title VII to sustain a claim of unlawful retaliation."); Henry v. Guest Services, Inc., 902 F.Supp. 245, 251 (D.D.C.1995) (holding that an employee must show "that he or she engaged in activity protected by the statute" to establish a prima facie case of retaliation). For Plaintiff to have a Title V claim, he must have suffered retaliation for opposing an act or practice made unlawful under the ADA. 42 U.S.C. § 12203(a).

Plaintiff alleges he opposed practices made unlawful under Title II of the ADA: (1) the placement of Fairview patients in the community without regard for their individual needs, and (2) the placement of patients unable to object to the placement decision due to a severe disability or the lack of a conservator or interested parents. Defendants contend neither of these alleged practices violates the ADA, hence Plaintiff's protests...