Nihiser v. Ohio Environmental Protection Agency, C2-94-1258.

• Decision Date: 06 August 1997
• Docket Number: No. C2-94-1258.,C2-94-1258.
• Citation: 979 F.Supp. 1168
• Parties: Michael D. NIHISER, Plaintiff, v. OHIO ENVIRONMENTAL PROTECTION AGENCY, Defendant.
• Court: U.S. District Court — Southern District of Ohio

979 F.Supp. 1168

Michael D. NIHISER, Plaintiff, v. OHIO ENVIRONMENTAL PROTECTION AGENCY, Defendant.

No. C2-94-1258.

United States District Court, S.D. Ohio, Eastern Division.

August 6, 1997.

John Spencely Marshall, Columbus, OH, for Plaintiff.

Jack Wilson Decker, James John Schubert, Robert Lee Griffin, David Jp. Katko, John B. Kahle, Pamela J. Vest, Ohio Atty. Gens., for Defendant.

MEMORANDUM OPINION

GRAHAM, District Judge.

This is an action under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 1211, et seq., and the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. §§ 791-794. Plaintiff contends that defendant violated these statutory provisions when it allegedly failed to accommodate his disability, a back injury, thereby occasioning plaintiff's resignation and constructive discharge.

This matter is before the court on the October 10, 1996 motion to dismiss filed by defendant Ohio Environmental Protection Agency. Defendant, an agency of the state of Ohio, argues that plaintiff's claims are barred by the Eleventh Amendment.

It is well established that the Eleventh Amendment prevents a federal court from entertaining a suit brought by a citizen against his own state. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). The Eleventh Amendment protects state agencies where the agency is an "arm or alter ego of the state." Hall v. Medical College of Ohio, 742 F.2d 299, 301 (6th Cir. 1984). The Eleventh Amendment bars suits against a state and its agencies unless the state has waived its sovereign immunity or Congress has overridden it. Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979); Whittington v. Milby, 928 F.2d 188 (6th Cir.1991).

The state of Ohio has not clearly waived its sovereign immunity from suit in the case of claims brought under the ADA or the Rehabilitation Act. The state of Ohio has only consented to suit in the Ohio Court of Claims pursuant to Ohio Rev.Code § 2743.02. Under Article I, § 16 of the Ohio Constitution, only the Ohio General Assembly may waive Ohio's sovereign immunity through legislative action. State of Ohio v. Madeline Marie Nursing Homes, 694 F.2d 449, 460 (6th Cir.1982). Plaintiff points to no statutory enactment whereby the General Assembly has done so in ADA and Rehabilitation Act cases.

Plaintiff argues that defendant waived its sovereign immunity because it is an agency which receives funds from the federal government. However, the mere fact that the state participates in a program through which the federal government provides funding to the state is not sufficient to establish the state's consent to suit. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 246-47, 105 S.Ct. 3142, 3149-50, 87 L.Ed.2d 171 (1985) (state did not waive Eleventh Amendment by receipt of funds under the Rehabilitation Act); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). The state can waive its sovereign immunity when it voluntarily participates in a program where Congress has conditioned participation in the program on the state's consent to suit in federal court. Florida Dept. of Health & Rehabilitative Services v. Florida Nursing Home Assn., 450 U.S. 147, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981); Tennessee Dept. of Human Services v. United States Dept. of Education, 979 F.2d 1162, 1166 (6th Cir.1992). This was not the case. here. There has been no waiver of sovereign immunity by the defendant in this case.

Congress also has the authority in some cases to override the states' immunity under the Eleventh Amendment. In deciding whether Congress has effectively abrogated a state's sovereign immunity, the court must determine: (1) whether Congress has unequivocally expressed its intent to abrogate immunity; and (2) whether Congress has acted pursuant to a valid exercise of power, that is, whether the law was passed pursuant to a constitutional provision which grants Congress the power to abrogate. Seminole Tribe of Florida v. Florida, 517 U.S. 609, ___ - ___, 116 S.Ct. 1114, 1123-25, 134 L.Ed.2d 252 (1996).

The first prong of the Seminole test is clearly satisfied here. Title 42 U.S.C. § 2000d-7 provides that states shall not be immune under the Eleventh Amendment from suit in federal court for violations of the Rehabilitation Act under 29 U.S.C. § 794. Likewise, 42 U.S.C. § 12202 provides that states are not immune from suit under the ADA. Congress has plainly indicated its intent to abrogate the states' sovereign immunity from actions under the Rehabilitation Act and the ADA.

In regard to the second prong of the Seminole test, the only currently recognized authority for Congress to abrogate the states' sovereign immunity, as indicated in Seminole, 517 U.S. at ___, 116 S.Ct. at 1125, consists of Congress' enactment of legislation pursuant to its enforcement powers under § 5 of the Fourteenth Amendment of the United States Constitution. Section 5 of the Fourteenth Amendment provides that "Congress shall have power to enforce, by appropriate legislation, the provisions of this article." The test for determining whether legislation was properly enacted pursuant to Congress' powers under § 5 of the Fourteenth Amendment is whether the statute: (1) may be regarded as an enactment to enforce the Equal Protection Clause; (2) whether it is plainly adapted to that end; and (3) whether it is not prohibited by, but is consistent with, the letter and spirit of the constitution. Katzenbach v. Morgan, 384 U.S. 641, 651, 86 S.Ct. 1717, 1723-24, 16 L.Ed.2d 828 (1966); Wilson-Jones v. Caviness, 99 F.3d 203, 209 (6th Cir.1996).

In noting the Katzenbach factors, the Sixth Circuit in Wilson-Jones, 99 F.3d at 209, made the following observations:

It is clear to us that these three Katzenbach factors cannot be kept so permissive as to make them collapse into the "rationally related" test generally used for the enforcement clauses of other constitutional amendments. The Fourteenth Amendment contains rather specific constitutional goals, such as the elimination of race discrimination by state actors, and also more general goals, such as the guarantee to every citizen of equal protection of the laws. The general goal of equal protection of law encompasses every facet of a citizen's interactions with government. If we were to say that an act is valid if it is rationally related to achieving equal protection of the laws, then § 5 becomes a license to Congress to pass any sort of legislation whatsoever. In reviewing such legislation, we could only ask whether the statute was a rational means to make the system of laws more rational, and the answer would always be "yes."

On the other hand, it is equally clear that Congress has broad discretion to legislate to enforce the core promises of the Fourteenth Amendment. Specifically, the Supreme Court and our circuit have been extremely deferential when reviewing under Section 5 legislation passed to enforce the ban on race discrimination by a state, to prohibit ethnic and linguistic restrictions on voting, to remedy discriminatory practices in the hiring of public contractors, or to remedy gender discrimination by state employers.

(Footnote and citations omitted).

The provisions at issue here are the accommodation requirements of the ADA and the Rehabilitation Act. Under the ADA, discrimination based upon an individual's disability has been defined under 42 U.S.C. § 12112(b)(5)(A) and (B) to include:

(5)(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity; or

(B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant[.]

This provision is made applicable to claims under the Rehabilitation Act through 29 U.S.C. § 794(d), which incorporates ADA standards for determining whether a violation of § 794 has occurred.

The term "reasonable accommodation" is defined in 42 U.S.C. § 12111(9) as including:

(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and

(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

The instant case involves accommodations such as those listed in subdivision (B) above. Plaintiff alleges that defendant should have restructured his job or reassigned him to a vacant position.

The term "undue hardship" means an action requiring significant difficulty or expense when viewed in light of the nature and cost of the accommodation, the financial resources of the employer and the nature of the employer's business. 42 U.S.C. § 12111(10).

The first Katzenbach factor is whether the statute may be regarded as an enactment to enforce the Equal Protection Clause. "The simplest way to meet this requirement is for Congress to declare explicitly that the legislation is passed to enforce Fourteenth Amendment rights." Wilson-Jones, 99 F.3d at 210. In 42 U.S.C. § 12101(b)(4), Congress stated that one purpose of the ADA was "to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment ... in order to address the major areas of discrimination faced day-to-day by people with disabilities." This language indicates that in enacting the ADA, Congress intended to utilize its enforcement powers...