Lucas v. Ala. Dep't of Pub. Health

• Decision Date: 07 January 2016
• Docket Number: CIVIL ACTION NO. 3:15CV941-WKW
• Parties: JAMES LUCAS, Plaintiff, v. STATE OF ALABAMA DEPARTMENT OF PUBLIC HEALTH, Defendant.
• Court: U.S. District Court — Middle District of Alabama

JAMES LUCAS, Plaintiff, v. STATE OF ALABAMA DEPARTMENT OF PUBLIC HEALTH, Defendant.

CIVIL ACTION NO. 3:15CV941-WKW

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

January 7, 2016

ORDER and RECOMMENDATION OF THE MAGISTRATE JUDGE

By order entered on January 6, 2016, the District Judge has referred this case to the undersigned for action or recommendation on all pretrial matters. (Doc. # 3). Plaintiff James Lucas, proceeding pro se, has filed a motion for leave to proceed in forma pauperis in this action. Upon consideration of the motion, it is

ORDERED that the motion (Doc. # 2) is GRANTED.

However, upon review of the complaint, the court concludes that some of plaintiff's claims are barred by the defendant's Eleventh Amendment immunity and, thus, are due to be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).¹

Eleventh Amendment

Plaintiff James Lucas sues his employer, the State of Alabama Department of PublicHealth, alleging violations of his federal statutory rights. He asserts claims of racial discrimination and retaliation in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, disability discrimination and retaliation in violation of the Americans with Disabilities Act, and unlawful denial of medical leave and retaliation under the Family and Medical Leave Act.² The Eleventh Amendment bars a federal court from entertaining a suit brought by a private party against a state - or one of its agencies or departments³ - absent the unequivocally-expressed consent of the state to being sued in federal court. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98-101 (1984) (citationsomitted); see id. at 100 ("It is clear ... that in the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment.")(citations omitted). Alabama has not consented to suit in federal court. See Ala. Const., Art. I, § 14 ("[T]he State of Alabama shall never be made a defendant in any court of law or equity.").

"The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court." Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001)(citation omitted). "This jurisdictional bar applies regardless of the nature of the relief sought." Pennhurst, 465 U.S. at 100. However, "[C]ongress may abrogate the States' Eleventh Amendment immunity when it both unequivocally intends to do so and 'act[s] pursuant to a valid grant of constitutional authority.'" Garrett, 531 U.S. at 363.

FMLA and ADA Claims

The claims that plaintiff asserts in Counts Three through Five are barred by the defendant's Eleventh Amendment immunity. While the FMLA and the ADA both express Congress's intention to abrogate the states' immunity, the Supreme Court has found the purported abrogation to exceed Congress's constitutional authority as to employment discrimination claims under Title I of the ADA and, also, as to the FMLA's self-care provision. Garrett, 531 U.S. at 363-64, 374 (ADA Title I claims); Coleman v. Court of Appeals of Maryland, 132 S. Ct. 1327, 1333, 1338 (2012) (FMLA self-care provision); seealso Garrett v. Univ. of Ala. Bd. of Trustees, 193 F.3d 1214, 1219 (11th Cir. 1999) (FMLA self-care provision), reversed on other grounds, Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001).

Plaintiff's FMLA causes of action relate to plaintiff's attempt to exercise his substantive rights under the Act's "self-care" provision, 29 U.S.C. § 2612(a)(1)(D), which grants an eligible employee the right to take leave "[b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee." See 29 U.S.C. § 2612(a)(1) (five subsections describing circumstances giving rise to an entitlement to leave); id., § 2615 ("Prohibited acts"); Hurlburt v. St. Mary's Health Care System, Inc., 439 F.3d 1286, 1293 (11th Cir. 2006) ("We have recognized that § 2615(a) creates two types of claims: 'interference claims, in which an employee asserts that his employer denied or otherwise interfered with his substantive rights under the Act, and retaliation claims, in which an employee asserts that his employer discriminated against him because he engaged in activity protected by the Act.'") (quoting Strickland v. Water Works and Sewer Bd. of the City of Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001)); Strickland, 239 F.3d at 1206 n. 9 ("While the FMLA does not clearly delineate these two claims with the labels 'interference' and 'retaliation,' those are the labels courts have used in describing an employee's claims under the Act."). Plaintiff's claims of interference and retaliation under the FMLA rest on the defendant's refusal to grant him medical leave that he sought due to his own post traumatic stress disorder, and its retaliation against him for requesting suchleave and for using "leave that should have been protected under the FMLA as a negative factor in his employment." (Complaint, Count V and ¶¶ 25, 26). Because these claims arise under the FMLA's "self-care" provision, they are barred by the defendant's Eleventh Amendment immunity. See Coleman, 132 S. Ct. at 1338.⁴

Plaintiff does not state expressly whether he brings his disability discrimination claims under Title I or Title II of the ADA. Title I of the ADA prohibits disability determination in the employment context. See 42 U.S.C. §§ 12111-12117. Title II of the Act prohibits disability discrimination in the context of public services. See 42 U.S.C. § 12132 ("[N]o qualified individual with a disability 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, or be subjected to discrimination by any such entity."). As noted previously, Congress did not abrogate the states' Eleventh Amendment immunity successfully as to Title I employment discrimination claims. Garrett, 531 U.S. at 374.⁵ However, because an employment discrimination claim against a public entity employer may also be brought underTitle II in the Eleventh Circuit (see Bledsoe v. Palm Beach County Soil and Water Conservation District, 133 F.3d 816 (11th Cir. 1998)),⁶ the court must determine whether Congress's express abrogation in the ADA of the states' immunity is valid as to employment discrimination claims arising under Title II.⁷

In Leverette v. State of Alabama Revenue Dept., 453 F.Supp.2d 1340 (M.D. Ala.2006) (Thompson, J.), the court concluded that, because Congress did not abrogate sovereign immunity validly as to claims of employment discrimination against the disabled under Title I, "Congress did not do so with Title II either." 453 F.Supp.2d at 1345. The court noted the Garrett Court's conclusion that the ADA's legislative history did not demonstrate a pattern of disability discrimination in state employment that would trigger Congress's enforcement power under § 5 of the Fourteenth Amendment, and reasoned that "it would be illogical to find that history of state discrimination against the disabled in employment is insufficient to permit Congress to enact Title I, but that that same history is somehow sufficient to allow Congress to fashion Title II." Id. The court held, accordingly, that the state employer retained its Eleventh Amendment immunity as to claims of employment discrimination under Title II.⁸ This court is also persuaded that, if Congress exceeded its § 5 enforcement powers by its purported abrogation of sovereign immunity as to claims of employment discrimination against state employers under Title I, the same is true when those claims are brought under Title II. See Leverette, 453 F.Supp.2d at 1345; Clifton v. Georgia Merit System, 478 F.Supp.2d 1356, 1368 (N.D. Ga. 2007) (also reasoning that the Garrett Court's conclusion that "'[t]he legislative record of the ADA ... simply fails to show that Congress did in factidentify a pattern of irrational state discrimination in employment against the disabled' is equally applicable to employment discrimination claims under Title I and Title II of the ADA" and holding that "Congress did not validly abrogate sovereign immunity with regard to state employment discrimination actions under Title II").⁹

The ADA's anti-retaliation provision falls within Title V of the ADA. See 42 U.S.C. § 12203. To the extent that plaintiff has alleged that he opposed discrimination made unlawful by the ADA, it is clear that the underlying discriminatory conduct related to the terms and conditions of his own state employment, as did the alleged retaliatory conduct. See Complaint, ¶¶ 25-26 and Count Four). The court concludes that, as to Title V retaliation claims arising under these particular circumstances, Congress has not abrogated the states' sovereign immunity validly. Marx v. Georgia Dept. of Corrections, 2013 WL 5347395 (M.D. Ga. Sept. 23, 2013); Marsh v. Georgia Dept. of Behavioral and Health Developmental Disabilities, 2011 WL 806423, * 4 n. 11 (S.D. Ga. Feb. 14, 2011) ("Marsh's claims are employment-discrimination based, at a minimum sounding in the Title I context, so the Eleventh Amendment immunity analysis applied to it is fairly extended to her ADA Title V (retaliation) claim.") (citing McCollum v. Owensboro Community & Technical College,2010 WL 5393852, *3 (W.D. Ky. Dec. 22, 2010)), recommendation adopted, 2011 WL 806658 (S.D. Ga. Mar. 2, 2011); McCollum, 2010 WL 5393852 at *3 ("The majority of the courts when confronted with this question considered the underlying discrimination a plaintiff opposed in determining whether a plaintiff's retaliation claim under § 12203 of the ADA is barred by the Eleventh Amendment."); see also Demshki v. Monteith, 255 F.3d 986, 988 (9th Cir. 2001) ("We recognize that Garrett arose in the context of Title I, but we nevertheless conclude that the Court's holding...