Ginwright v. Dep't of Revenue for Ala.

• Decision Date: 21 March 2013
• Docket Number: CASE NO. 2:12-cv-473-WC
• Parties: JACQUELINE GINWRIGHT, Plaintiff, v. DEPARTMENT OF REVENUE FOR THE STATE OF ALABAMA, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

JACQUELINE GINWRIGHT, Plaintiff, v. DEPARTMENT OF REVENUE FOR THE STATE OF ALABAMA, et al., Defendants.

CASE NO. 2:12-cv-473-WC

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

Done: March 21, 2013

MEMORANDUM OPINION AND ORDER

Before the court is Defendants' Motion to Dismiss (Doc. 6). Plaintiff filed an Amended Complaint (Doc. 18) and Defendant filed a Supplement to the Motion to Dismiss (Doc. 19). Plaintiff then filed a Supplemental Response in Opposition (Doc. 20).

Plaintiff's Complaint names as Defendants the Alabama Department of Revenue, Julie P. Magee, individually and in her official capacity as the Commissioner of Alabama Department of Revenue; Charlie Lassiter, individually and in her official capacity as Director of the Human Resources Division of the Alabama Department of Revenue; and Annette Russell, individually and in her official capacity as the Family Medical Leave Coordinator for the Alabama Department of Revenue.¹ The Complaint (Doc. 1) allegedthe following causes of action:

Count 1: Disability Discrimination in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. and/or the Americans with Disabilities Act, 42 U.S.C. 12101 et seq.;

Count 2: Retaliation in violation of the Americans with Disabilities Act, 42 U.S.C. 12101 et seq. and/or the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq.;

Count 3: Violations of the Family and Medical Leave Act 29 U.S.C. § 2601 et seq.

Compl. (Doc. 1) at 7-14. Plaintiff then filed an Amended Complaint, seeking to "to clarify her issues and also to allege the Court's jurisdiction pursuant to 42 U.S.C. § 1983." Pl.'s Resp to Mot. to Dismiss (Doc. 9) at 8. Plaintiff's Amended Complaint removed her ADA claims and added discrimination and retaliation claims pursuant to 42 U.S.C. § 1983. The Amended Complaint listed the following causes of action:

Count 1: Disability Discrimination in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq.;

Count 2: Retaliation in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq.;

Count 3: Violations of the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq.;

Count 4: Violation of § 1983 - Disability Discrimination against the Alabama Department of Revenue and the Individual Defendants in their official capacities;

Count 5: Violation of § 1983 - Disability Discrimination against Individual Defendants in their individual capacities

Count 6: Violation of § 1983 - Retaliation claim against the Alabama Department of Revenue and the Individual Defendants in their official capacities

Count 7: Violation of § 1983 - Retaliation claim against the Individual Defendants in their individual capacities.

Am. Compl. (Doc. 18).

Upon consideration of Defendants' Motion to Dismiss (Doc. 6) and Supplement to the Motion to Dismiss (Doc. 20), the court finds that the Motion (Doc. 6) is due to be GRANTED in PART and DENIED in PART.

I. FACTS

For purposes of considering Defendants' Motion to Dismiss, the court presumes that the allegations in the Complaint and Amended Complaint are true.

II. STANDARD

Defendants filed the instant Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.

A. Rule 12(b)(1) Motion to Dismiss Standard

"A defendant can move to dismiss a complaint under Rule 12(b)(1) for lack of subject matter jurisdiction by either facial or factual attack." Stalley ex rel. U.S. v. Orlando Reg'l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008). "A 'facial attack' on the complaint 'require[s] the court merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion.'" McElmurray v. Consol. Gov't of Augusta-Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007) (quoting Lawrence v. Dunbar, 919 F.3d 1525, 1529 (11th Cir. 1990)). "Factual attacks," on the other hand, serve to "challenge 'the existence of subject matter jurisdiction in fact,irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits are considered.'" Id. In McElmurray v. Consol. Gov't of Augusta-Richmond Cnty., the Eleventh Circuit stated that a district court treated a motion to dismiss as a facial, rather than factual, attack because it "considered only the complaint and the attached exhibits." 501 F.3d 1244, 1251 (11th Cir. 2007). When considering facial challenges to subject matter jurisdiction, "the court must, as with a Rule 12(b)(6) motion, take the complaint's allegations as true." Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009) (citing Morrison v. Amway Corp., 323 F.3d 920, 925 n.5 (11th Cir. 2003); see Carmichael v. Kellogg, Brown & Root Servs., Inc., 564 F. Supp. 2d 1363, 1365 (N.D. Ga. 2008) (holding that "[i]n considering a facial challenge, which simply alleges that the plaintiff failed to sufficiently allege a basis for subject matter jurisdiction, a court must accept the allegations in the complaint as true," which is likened to the safeguards afforded a plaintiff when a Rule 12(b)(6) motion to dismiss for failure to state a claim is raised).

B. Rule 12(b)(6) Motion to Dismiss Standard

In deciding a Rule 12(b)(6) motion to dismiss, the court must accept all well-pleaded factual allegations in a complaint as true and take them in the light most favorable to plaintiff. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Christopher v. Harbury, 536 U.S. 403, 406 (2002). "To survive dismissal, the complaint's allegations must plausibly suggest that the [plaintiff] has a right to relief, raising that possibility above a speculative level; if they do not, the plaintiff's complaint should be dismissed."James River Ins. Co. v. Ground Down Eng'g, Inc., 540 F.3d 1270, 1274 (11th Cir. 2008) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)); see also Edwards v. Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). The former rule—that "[a] complaint should be dismissed only if it appears beyond doubt that the plaintiffs can prove no set of facts which would entitle them to relief," La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004)—has been retired by Twombly. James River Ins. Co., 540 F.3d at 1274. Thus, the court engages in a two-step approach: "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, 556 U.S. 662 (2009). The court need not accept as true legal conclusions or mere conclusory statements. Id.

III. DISCUSSION

A. ADA Claims

Defendants assert Eleventh Amendment immunity from suit brought under the Americans with Disabilities Act. Supp. to Mot. (Doc. 19) at 5. Plaintiff's Response (Doc. 9) to the Motion to Dismiss concedes that Eleventh Amendment immunity applies to claims under the ADA and states, "If state employees pursue suit in federal courts to recover money damages alleging that the state failed to comply with the ADA, the claim is barred by the Eleventh Amendment. Accordingly, Ms. Ginwright will be filing a motion for leave to file an amended complaint, that will remove her ADA claims and focus on disability, retaliation and harassment claims under the Rehabilitation Act andalso under 42 U.S.C. § 1983." Pl.'s Resp to Mot. to Dismiss (Doc. 9) at 10-11. Because Plaintiff conceded that Defendants are immune to civil suit under the ADA and because she removed her ADA claims in her Amended Complaint (Doc. 18), Defendants' Motion to Dismiss is due to be denied as moot.

B. Disability Discrimination and Retaliation Claims Under the Rehabilitation Act

Plaintiff raises disability discrimination and retaliation claims in violation of the Rehabilitation Act and seeks declaratory and compensatory relief. (Counts 1-2).²

1. The Department and the Individual Defendants in their Official Capacities

As to Plaintiff's claims brought pursuant to the Rehabilitation Act, Defendants correctly concede, that "[a]lthough, the Plaintiff's ADA claim is barred by the Eleventh Amendment, her Rehabilitation Act claim is not." Supp. to Mot. (Doc. 19) at 6. The law in the Eleventh Circuit is that states accepting federal funding waive their Eleventh Amendment immunity. See 42 U.S.C. § 2000d-7 ("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 of 1973 . . . or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance."); Garrett v. Univ. of Ala. at Birmingham, 344 F.3d 1288, 1293 (11th Cir.2003) ("Section 2000d-7 unambiguously conditions the receipt of federal funds on a waiver of Eleventh Amendment immunity to claims under section 504 of the Rehabilitation Act. By continuing to accept federal funds, the state agencies have waived their immunity."). Accordingly, Plaintiff's disability and discrimination claims under the Rehabilitation Act raised against the Department will survive Defendants' motion to dismiss.

However, to the extent Plaintiff raises claims against the Individual Defendants in their official capacities, these claims are due to be dismissed.

Official capacity suits are suits against state agencies, not against the people through whom agencies act. The Supreme Court has said that official capacity suits represent "only another way of pleading an action against an entity of which an officer is an agent," and a victory against a named individual in an official capacity suit is "a victory against the entity that employs him." [Kentucky v.] Graham, [473 U.S. 159, 167-68 (1985)]. Thus, to impose official liability on a government entity amenable to suit, a plaintiff need do no more than name the

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