Kelley v. Mayhew

• Citation: 973 F.Supp.2d 31
• Decision Date: 23 September 2013
• Docket Number: Civil No. 1:12–CV–00390–NT.
• Parties: Rosemary S. KELLEY, Plaintiff, v. Mary MAYHEW, in her official capacity as Commissioner, State of Maine Department of Health and Human Services and State of Maine, Department of Health and Human Services, Defendants.
• Court: U.S. District Court — District of Maine

973 F.Supp.2d 31

Rosemary S. KELLEY, Plaintiff,

v.Mary MAYHEW, in her official capacity as Commissioner, State of Maine Department of Health and Human Services and State of Maine, Department of Health and Human Services, Defendants.

Civil No. 1:12–CV–00390–NT.

United States District Court, D. Maine.

Sept. 23, 2013.

Rosemary S. Kelley, pro se.

Kelly L. Turner, Office of the Attorney General, Augusta, ME, for Defendants.

ORDER ON DEFENDANTS' MOTION TO DISMISS

NANCY TORRESEN, District Judge.

This case comes before the Court on the Defendants' motion to dismiss the Complaint for lack of subject-matter jurisdiction and failure to state a claim (ECF No. 4). For the following reasons, the Defendants' motion to dismiss is denied.

Background

The Plaintiff, Rosemary S. Kelley, alleges the following facts in the Complaint. Since childhood, Kelley has had hearing loss and worn hearing aids. Compl. ¶ 6 (ECF No. 3–2). She had worked as a teacher's assistant at Sonshine Nursery School (“Sonshine”) in Friendship, Maine for 31 years until December 23, 2011, when Sonshine ended her employment because Maine's Department of Health and Human Service's (“DHHS”) Division of Licensing and Regulatory Services (“DLRS”) would not count her towards Sonshine's staff-to-child ratio for purposes of its license to operate a child care facility. Compl. ¶¶ 10, 23–25.

On September 17, 2010, while Kelley was working, DLRS Community Care Worker Brian McAuliffe visited the school to conduct a survey for the school's application for renewal of its license to operate a child care facility. During the visit, McAuliffe became concerned that Kelley was unable to effectively supervise the children because of her hearing loss. Compl. ¶¶ 11–12. McAuliffe had no training or expertise in hearing loss and did not request any information from Kelley about her hearing loss; he at no point asked for a report from her audiologist or asked to review any of her audiograms. Kelley noticed that McAuliffe was observing her that day and asked if anything was wrong. He told her that there was no problem. Compl. ¶¶ 13–16.

McAuliffe told Sonshine's director that he was concerned that Kelley would not be able to hear and respond to the children in an emergency. Compl. ¶ 17. McAuliffe determined that Kelley could not be counted as a staff member for Sonshine's staff-to-child ratio. Compl. ¶ 22. Kelley was one of two staff members supervising a classroom of thirteen children, and if she could not be counted in her class's staff-to-child ratio, Sonshine would need to hire another staff member. Compl. ¶ 21.

On September 21, 2010, DLRS renewed Sonshine's license with the understanding that Sonshine would hire a new employee to comply with the staff-to-child ratio. Compl. ¶ 23. In an October 29, 2010 e-mail to his supervisor, McAuliffe said: “Unless another staff [member] is available, licensing action will need to be taken on the license, due to the facility not meeting proper staff-child ratios.” Compl. ¶ 24.

On November 22, 2010, Sonshine's Chairman of the Board told Kelley that she would be replaced on December 23, 2010, because of the licensing issue. Kelley asked for a chance to get new hearing aids, but the school was too concerned about its license to consider her request. Compl. ¶¶ 25–26.

In December of 2010, Kelley contacted McAuliffe and DLRS several times. In a December 28, 2010 email, Kelley told McAuliffe that she had been wearing hearing aids for the entire 31 years that she worked at Sonshine, that being fired was a nightmare because she loved the children at Sonshine, that she needed new hearing aids, and that she would get them shortly. She told him that she would correct anything she was doing wrong so that she could continue working with children. Compl. ¶ 27. DLRS was unresponsive to Kelley's pleas. Compl. ¶ 28.

Kelley brought a three-count complaint in Kennebec County Superior Court against DHHS and its commissioner, Mary Mayhew, for unlawful discrimination under the Maine Human Rights Act (“MHRA”), 5 M.R.S.A. § 4592(1), (7) (Count I), Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, (Count II), and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, (Count III). She seeks a declaratory judgment that the State of Maine's practices are unlawful, injunctive relief ordering the Defendants to promulgate non-discriminatory written policies and procedures, damages, attorney's fees, and costs.

The Defendants removed the case to this Court and filed a motion to dismiss the Complaint on the following grounds: (1) the Plaintiff has failed to state a claim upon which relief can be granted under Title II of the ADA, the MHRA, and Section 504 of the Rehabilitation Act; (2) the Eleventh Amendment bars the Plaintiff's Title II claim against the state and Commissioner Mayhew; and (3) the Plaintiff's claims against Commissioner Mayhew in her official capacity are duplicative of the Plaintiff's action against DHHS, so Commissioner Mayhew should be dismissed as a defendant.

Discussion

I. Discrimination Under Title II of the ADA

A. Legal Standard

Pursuant to the Supreme Court's opinion in United States v. Georgia, 546 U.S. 151, 159, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006), the Court turns first ¹ to whether the Plaintiff has stated a claim for a violation of Title II of the ADA.²Rule 8 of the Federal Rules of Civil Procedure requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “Each allegation must be simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1). A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests whether a plaintiff has alleged sufficient non-conclusory, non-speculative facts that “plausibly narrate a claim for relief.” Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir.2012); see also Ashcroft v. Iqbal, 556 U.S. 662, 678–79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The Court takes the Complaint's well-pled facts as true and draws all reasonable inferences in the plaintiff's favor. Schatz, 669 F.3d at 55.

B. Title II of the ADA

The ADA has five titles, “three of which are meant to eliminate in a distinct area discrimination against persons with disabilities.”Buchanan, 469 F.3d at 170. Title I deals with discrimination by employers affecting interstate commerce, and Title III governs discrimination in public accommodations and services operated by private entities. Id. This case involves Title II of the ADA, 42 U.S.C. §§ 12131–12165, which “addresses discrimination by governmental entities in the operation of public services, programs, and activities, including transportation....” Id.

Section 12132 of Title II provides that “no qualified individual with a disability ³ shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity,⁴ or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. But Title II “does not require a public entity to permit an individual to participate in or benefit from the services, programs, or activities of that public entity when that individual poses a direct threat to the health or safety of others.” 28 C.F.R. § 35.139(a). “The protection afforded by the ADA is characterized as a guarantee of ‘meaningful access' to governmental benefits and programs, which broadly means that public entities must take reasonable steps to ensure that individuals with disabilities can take advantage of such public undertakings.” Theriault v. Flynn, 162 F.3d 46, 48 (1st Cir.1998) (citations omitted). The First Circuit has explained:

To prevail on a Title II claim, a plaintiff must demonstrate: “(1) that he is a qualified individual with a disability; (2) that he was either excluded from participation in or denied the benefits of some public entity's services, programs, or activities or was otherwise discriminated against; and (3) that such exclusion, denial of benefits, or discrimination was by reason of the plaintiff's disability.”

Buchanan, 469 F.3d at 170–71 (quoting Parker v. Universidad de P.R., 225 F.3d 1, 5 (1st Cir.2000)). To recover compensatory damages under either Title II or Section 504, a plaintiff must demonstrate that the state intentionally discriminated against her and caused her economic harm. Nieves–Márquez v. P.R., 353 F.3d 108, 126 (1st Cir.2003).

C. The Plaintiff's Allegations

The Defendants essentially argue that the Plaintiff has not adequately alleged any of the three elements of a Title II claim and that she has not alleged that the state intentionally discriminated against her.

Title II cases comes in many different shapes and sizes, but neither party has cited a case which is on all fours with this one. Although the fit is not perfect, case law and the federal regulations on disability discrimination in licensing provide the best guidance for analyzing the Plaintiff's claims.

1. Qualified Individual with a Disability

According to the First Circuit:

In the context of licensing or certification, a person is “qualified” and thus within the protected category if he or she can meet the “essential eligibility requirements” for receiving a license or certification, with accommodation made for the disability. In determining whether “essential eligibility requirements” are met, a public entity properly may consider whether an applicant with a disability poses a direct threat to the health and safety of others.

Theriault, 162 F.3d at 48 (citations omitted). The Department of Justice regulations provide:

In determining whether an individual poses a direct threat to the health or safety of others, a public accommodation must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: The nature, duration, and severity of the risk; the probability that the...