Martin v. Arkansas Department of Health

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

KELLIE MARTIN PLAINTIFF

v. Case No. 4:22-cv-00809 KGB

ARKANSAS DEPARTMENT OF HEALTH DEFENDANT

ORDER

Before the Court are defendant Arkansas Department of Health’s (“ADH”) motion to

dismiss and ADH’s motion to stay discovery and deadlines in the Initial Scheduling Order (Dkt.

Nos. 3; 6). Plaintiff Kellie Martin responded in opposition to both motions (Dkt. Nos. 8; 9). For

the following reasons, the Court grants, in part, and denies, in part, ADH’s motion to dismiss (Dkt.

No. 3). On its own motion pursuant to Federal Rule of Civil Procedure 12(e), the Court directs

Ms. Martin to file a more definite statement by filing an amended complaint, should she choose to

do so, within 21 days from the entry of this Order. For good cause shown, the Court grants ADH’s

motion to stay this Court’s Initial Scheduling Order and discovery (Dkt. No. 6).

I. Ms. Martin’s Complaint

Unless otherwise noted, the Court draws the following facts from Ms. Martin’s well-

pleaded complaint (Dkt. No. 1). Farm Credit Servs. of Am., FLCA v. Haun, 734 F.3d 800 (8th Cir.

2013).

Ms. Martin brings this lawsuit against ADH alleging violations of Titles I and V of the

Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12111–12117, 12203, and of the

Arkansas Civil Rights Act (“ACRA”), Ark. Code Ann. § 16-123-101, et seq. As relief, Ms. Martin

seeks declaratory judgment, injunctive relief, compensatory damages, and costs, including a

reasonable attorney’s fee, as a result of her constructive termination (Dkt. No. 1, ¶¶ 1–2). Ms.

Martin maintains that this Court has subject matter jurisdiction over this suit pursuant to 28 U.S.C.

§ 1331 because this suit raises federal questions under the ADA (Id., ¶ 3). Ms. Martin claims this

Court has supplemental jurisdiction over her ACRA claims because those claims form part of the

same case or controversy and arise out of the same common nucleus of operative facts as the

alleged ADA claims (Id., ¶¶ 4–5).

At all times relevant, Ms. Martin was employed by ADH as a Health Services Specialist II

in the Jefferson County Health Unit (Id., ¶¶ 7, 15). ADH is a state agency organized and existing

under the laws of the State of Arkansas (Id., ¶ 10). During her ADH employment, Ms. Martin

maintains that she was entitled to the protections and benefits provided under the ADA and ACRA

(Id., ¶ 9). ADH is an employer within the meanings set forth in the ADA and ACRA (Id., ¶ 8).

ADH was Ms. Martin’s employer as defined by the ADA and ACRA and subject to the anti-

discrimination provisions of the ADA and ACRA (Id., ¶¶ 12, 13).

Ms. Martin has been diagnosed with a disability (epilepsy) that substantially limits her

major life activities (Id., ¶ 17). Her disability can be triggered by sights, sounds, and smells (Id.,

¶ 18). Ms. Martin was able to perform her job duties with a reasonable accommodation and

requested such an accommodation from ADH (Id., ¶ 17). However, Ms. Martin alleges that, during

her employment, her disability worsened due to conditions experienced in her workplace, such as

her coworkers talking loudly and eating strong-smelling foods (Id., ¶ 18).

Ms. Martin requested an ADA accommodation from ADH to make her workplace readily

accessible and usable (Id., ¶ 19). Her supervisor conducted a meeting with all units asking them

to be aware of sounds and smells and how they impacted other employees (Id., ¶ 20). After making

this accommodation request referencing the ADA, Ms. Martin’s working conditions worsened.

(Id., ¶ 21).

Ms. Martin’s coworkers made comments about how “crazy” it was to have a meeting over

sounds and smells (Id., ¶ 23). Ms. Martin’s supervisors became condescending and hostile toward

her, including the district manager screaming at Ms. Martin and accosting her in the office (Id., ¶

24). Ms. Martin’s district manager made statements implying that Ms. Martin was exaggerating

the impact of her disability, malingering, or using her disability as an excuse, including telling Ms.

Martin, “you said your disability was controlled,” “you use this disability thing a lot,” and “you

say you’re sick[,] but you just use that as an excuse to get off.” (Id., ¶ 25).

The Court understands Ms. Martin to allege that, just one day after Ms. Martin reported

what she characterizes as her district manager’s retaliatory actions to the district manager’s

superior, Ms. Martin was placed on administrative leave (Id., ¶ 26). Ms. Martin claims that being

placed on administrative leave constituted an adverse employment action (Id.). Ms. Martin also

alleges that she received a poor performance rating, which would impact her ability to advance

and to receive pay increases in the future, though she does not specify when this occurred (Id., ¶

27). Ms. Martin claims that ADH’s ongoing discriminatory and retaliatory actions caused her

health conditions to worsen (Id., ¶ 28). Ms. Martin maintains that she had to seek emergency

medical treatment multiple times due to the stress and anxiety of the situation (Id., ¶ 29).

According to Ms. Martin, ADH made Ms. Martin’s working conditions so intolerable that ADH

constructively terminated Ms. Martin’s employment on June 17, 2022 (Id., ¶ 30).

Ms. Martin contends that ADH’s failure of accommodation and constructive termination

on the basis of her disability harmed her (Id., ¶ 32). Ms. Martin alleges that ADH constructively

terminated her employment as a direct result of discrimination on the basis of her disability status

and the retaliatory actions she experienced after she made accommodation requests (Id., ¶ 33).

Further, the Court understands Ms. Martin’s complaint to state that other ADH employees,

with equal or less tenure, had qualifying medical conditions which required accommodations or

time off as a result of their disabilities and medical treatment (Id., ¶ 31). Ms. Martin claims that

these other ADH employees were not subject to the harassment she experienced (Id.).

Ms. Martin claims that these actions show that ADH intentionally discriminated against

her based on her “sensory, mental, or physical disability” in violation of the ACRA. Ark. Code

Ann. § 16-123-107 (Id., ¶ 36). Ms. Martin cites Clegg v. Ark. Department of Corrections, 496

F.3d 922, 926 (8th Cir. 2007), for the proposition that claims brought under the ACRA are

governed by the same standards as Title VII claims of the Civil Rights Act. 42 U.S.C. §§ 2000e–

2000e17 (Id., ¶ 37).

Ms. Martin filed a charge with the Equal Employment Opportunity Commission (“EEOC”)

alleging violations of Titles I and V of the ADA by ADH (Id., ¶ 41). Ms. Martin received a Notice

of Rights Letter from the EEOC (Id., ¶ 42). Ms. Martin claims that all conditions precedent were

satisfied prior to the filing of her lawsuit (Id.). She alleges causes of action for violations of the

ADA anti-discrimination and anti-retaliation provisions (Id., ¶¶ 40-56) and the ACRA anti-

discrimination provision (Id., ¶¶ 34-39).

Ms. Martin seeks actual economic damages, including compensation for wages lost;

punitive damages; attorney’s fees, costs, and pre-judgment interest; and any other just and proper

relief (Id., at 8). As additional relief, Ms. Martin seeks the following pursuant to the ADA: (1) an

additional amount as liquidated damages equal to the sum of her lost wages or salary, (2) benefits

and/or other compensation denied or loss to her by reason of ADH’s alleged ADA violations, and

(3) any interest to which she is entitled for these causes (Id., ¶ 56).

II. Legal Standard

A. Rule 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) allows a district court to dismiss a complaint for

lack of subject matter jurisdiction. The burden of proving subject matter jurisdiction falls on the

plaintiff. V S Ltd. P’ship v. Dep’t of Housing & Urban Dev., 235 F.3d 1109, 1112 (8th Cir. 2000).

For a court to dismiss a claim under Rule 12(b)(1), the opposing party must successfully challenge

the claim on its face or the factual truthfulness of its averments. Titus v. Sullivan, 4 F.3d 590, 593

(8th Cir. 1993). A facial attack restricts a court to review the face of the pleadings to determine

whether the plaintiff has alleged a basis of subject matter jurisdiction. Osborn v. United States,

918 F.2d 724, 729 (8th Cir. 1990).

Facial attacks under Rule 12(b)(1) are subject to the same standard as a motion to dismiss

under Federal Rule of Civil Procedure 12(b)(6). Mattes v. ABC Plastics, Inc., 323 F.3d 695, 698

(8th Cir. 2003). Factual attacks, however, 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. Osborn, 918 F.2d at 729.

Lastly, an issue of subject matter jurisdiction may be raised at any time. Long v. Area

Manager, Bureau of Reclamation, 236 F.3d 910, 916 (8th Cir. 2001) (examining an instance where

a district court did not address the issue of Eleventh Amendment immunity and concluding that

the “question of subject-matter jurisdiction may be raised sua sponte at any time.”).

B. Rule 12(b)(6)

A Federal Rule of Civil Procedure 12(b)(6) motion tests the legal sufficiency of the claim

or claims stated in the complaint. See Peck v. Hoff, 660 F.2d 371, 374 (8th Cir. 1981). “To survive

a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state

a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 773 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). Although

a complaint “does not need detailed factual allegations” to survive a Rule 12(b)(6) motion to

dismiss, the “[f]actual allegations must be enough to raise a right to relief above the speculative

level.” Twombly, 550 U.S. at 555. Stated differently, the allegations pleaded must show “more

than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.

A court considering a motion to dismiss must accept as true all well-pleaded facts in the

complaint and draw all reasonable inferences from those facts in favor of the non-moving party,

here Ms. Martin. See Farm Credit, 734 F.3d at 804; Coons v. Mineta, 410 F.3d 1036, 1039 (8th

Cir. 2005); Abels v. Farmers Commodities Corp, 259 F.3d 910, 914 (8th Cir. 2001). However, a

court need not credit conclusory allegations or “naked assertion[s] devoid of further factual

enhancement.” Retro Television Network, Inc. v. Luken Commc’ns, LLC, 696 F.3d 766, 768 (8th

Cir. 2012) (alteration in original) (quoting Iqbal, 556 U.S. at 678). “Rule 12(b)(6) authorizes a

court to dismiss a claim on the basis of a dispositive issue of law.” Neitzke v. Williams, 490 U.S.

319, 326 (1989). Finally, a court ruling on a motion to dismiss under Rule 12(b)(6) may consider

documents or exhibits attached to a complaint, as well as matters of public and administrative

record referenced in the complaint. See Owen v. Gen. Motors Corp., 533 F.3d 913, 918 (8th Cir.

2008); Quinn v. Ocwen Fed. Bank FSB, 470 F.3d 1240, 1244 (8th Cir. 2006). “[D]ocuments

necessarily embraced by the complaint are not matters outside the pleading.” Ashanti v. City of

Golden Valley, 666 F.3d 1148, 1151 (8th Cir. 2012) (citing Enervations, Inc. v. Minn. Mining &

Mfg. Co., 380 F.3d 1066, 1069 (8th Cir.2004)). “Documents necessarily embraced by the

pleadings include ‘documents whose contents are alleged in a complaint and whose authenticity

no party questions, but which are not physically attached to the pleading.’” Ashanti, 666 F.3d at

1151.

III. Analysis

Ms. Martin brings this action to remedy alleged violations of Titles I and V of the ADA

and the ACRA (Dkt. No. 1). ADH moves to dismiss all of Ms. Martin’s claims (Dkt. No. 3). First,

ADH argues that this Court lacks jurisdiction over Ms. Martin’s ADA claims because Ms. Martin

did not exhaust her administrative remedies (Id., ¶ 2). Second, ADH asserts that this Court lacks

jurisdiction over Ms. Martin’s ADA and ACRA claims because the ADH is absolutely immune

under the Eleventh Amendment and because Congress did not validly abrogate the state sovereign

immunity under Titles I and V of the ADA (Id., ¶¶ 3, 4). Third, ADH maintains that,

notwithstanding this Court’s lack of subject matter jurisdiction, Ms. Martin fails to state a claim

for relief under Titles I and V of the ADA or the ACRA (Id., ¶ 5). ADH also argues that the Court

should not exercise supplemental jurisdiction over Ms. Martin’s ACRA claims because all other

causes of action should be dismissed (Id., ¶¶ 2, 6). The Court examines each of ADH’s arguments.

ADH’s arguments related to the Court’s subject matter jurisdiction appear to be a facial,

not a factual challenge, to Ms. Martin’s lawsuit under Rule 12(b)(1) (Dkt. No. 4, at 7–10). The

Court acknowledges that ADH mentions the term “factual attack” (Id., at 11). However, having

examined ADH’s arguments and the record before it, the Court concludes ADH mounts a facial

challenge. For these reasons, the Court conducts its analysis of ADH’s challenges to this Court’s

subject matter jurisdiction in the same way that the Court analyzes ADH’s argument that Ms.

Martin fails to state a claim. In short, the Court accepts as true all well-pleaded facts in the

complaint and draws all reasonable inferences from those facts in favor of the non-moving party,

here Ms. Martin. Farm Credit, 734 F.3d at 804.

For the reasons explained in this Order, the Court finds that the Eleventh Amendment bars

Ms. Martin’s claim for money damages under Title I of the ADA and the ACRA. The Court finds

that Ms. Martin has failed to state a prima facie claim for retaliation under Title V of the ADA.

Moreover, the Court raises sua sponte that Ms. Martin’s claims for equitable relief are subject to

dismissal because she sues only ADH and fails to sue a state official in his or her official capacity.

See Monroe v. Arkansas State Univ., 495 F.3d 591, 594 (8th Cir. 2007); Long, 236 F.3d at 916.

A. Failure To Exhaust Administrative Remedies

At the outset, the Court finds ADH’s argument related to exhaustion unconvincing and

declines to dismiss Ms. Martin’s complaint on this basis (Dkt. No. 4, at 5–7). On the face of the

complaint, Ms. Martin states that she “received a Notice of Rights Letter” (Dkt. No. 1 ¶ 42). In

addition to receiving a Notice of Rights Letter or right-to-sue letter from the EEOC, an employee

who works for a governmental agency is required to obtain a right-to-sue letter from the United

States Attorney General. 42 U.S.C. §§ 12117, 2000e-5(f). However, while statutory, obtaining a

right-to-sue letter from the United States Attorney General is not jurisdictional and is subject to

equitable waiver or tolling. Woods v. State of Mo. Dep’t of Mental Health, Kansas City Reg’l

Diagnostic Ctr., 581 F. Supp. 437, 443 (W.D. Mo. 1984); see also Stowers v. Arkansas, State of

et al., No. 3:19-cv-00238-DPM, 2020 WL 86543, at *2 (E.D. Ark. Jam. 6, 2020); Chedjieu v.

Arkansas Nat. Res. Comm’n, No. 4:19-cv-00575-JM, 2019 WL 6794020, at *1 (E.D. Ark. Dec.

12, 2019) (citing English v. Ware Cty. Dep’t of Family & Children Servs., 546 F. Supp. 689, 692

(S.D. Ga. 1982)). Accepting the facts as alleged by Ms. Martin as true, the Court declines to

dismiss Ms. Martin’s complaint at this stage of the litigation on the basis of failing to exhaust

administrative remedies.

B. Eleventh Amendment Immunity

Ms. Martin alleges that the ADH violated Titles I and V of the ADA by engaging in

unlawful employment practices, retaliating against her after she made a reasonable

accommodation request, and subjecting her to adverse employment actions (Dkt. No. 1, ¶¶ 43, 44).

ADH claims that it is immune under the Eleventh Amendment because Titles I and V of the ADA

and the ACRA do not abrogate its immunity and therefore this Court is divested of jurisdiction to

hear Ms. Martin’s suit (Dkt. No. 4, at 8–12).

Ms. Martin concedes that the Eleventh Amendment prevents her from pursuing money

damages from ADH under Title I of the ADA and the ACRA (Dkt. No. 8, at 4). However, she

maintains that her Title I and ACRA claims for prospective, declaratory, or injunctive relief

survive pursuant to the Supreme Court’s holding in Ex parte Young, 209 U.S. 123, 155–56 (1908)

(Id., at 3–4). With respect to her Title V claim she cites Lors v. Dean, 746 F.3d 857 (8th Cir.

2014), for the proposition that Title V money damages claims are only barred after a determination

of: (1) which aspects of the State’s alleged conduct violated Title V of the ADA; (2) to what extent

such misconduct also violated the Fourteenth Amendment; and (3) insofar as such misconduct

violated Title V but did not violate the Fourteenth Amendment, whether Congress’ purported

abrogation of sovereign immunity as to that class of conduct is nevertheless valid (Dkt. No. 8, at

1, 2).

1. ADA Claim – Title I

Title I of the ADA prohibits “discriminat[ion] against a qualified individual on the basis of

disability in regard to job application procedures, the hiring, advancement, or discharge of

employees, employee compensation, job training, and other terms, conditions, and privileges of

employment.” 42 U.S.C. §§ 12112(a). Pursuant to Title I of the ADA, “reasonable

accommodation” includes “making existing facilities used by employees readily accessible to and

usable by individuals with disabilities . . .” 42 U.S.C. § 12111.

In Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 374 (2001),

the Supreme Court held that the Eleventh Amendment barred private individuals from suing for

money damages under Title I of the ADA. The Supreme Court reasoned that Congress had not

validly abrogated the states’ sovereign immunity because it had not identified “a pattern of

discrimination by the States which violates the Fourteenth Amendment.” Id. However, the Court

left open the door to Title I suits brought “by the United States in actions for money damages, as

well as by private individuals in actions for injunctive relief under Ex parte Young.” Id. at n.9.

In response to the ADH’s motion to dismiss, Ms. Martin maintains that her Title I claims

for prospective, declaratory, or injunctive relief survive pursuant to the Supreme Court’s holding

in Ex parte Young, 209 U.S. at 155–56 (Dkt. No. 8, at 3–4). In Ex parte Young, “the Supreme

Court held that when a state official acts in violation of the Constitution or federal law, he is acting

ultra vires and is no longer entitled to the State’s immunity from suit.” Gibson v. Ark. Dep’t of

Correction, 265 F.3d 718, 719 (8th Cir. 2001). “In effect, Ex parte Young creates a legal fiction”

in that it allows a private party to sue a state official in that person’s official capacity under the

theory that “a state official stops being a state official when he does something contrary to federal

law.” Id. at 719–20. “The Ex parte Young doctrine permits only prospective injunctive relief; no

money damages are available.” Gibson, 265 F.3d at 720 (citing Edelman v. Jordan, 415 U.S. 651,

664, 667–68 (1974)).

While Ex parte Young allows a plaintiff to sue a state official in his or her official capacity

to secure prospective injunctive relief without offending the Eleventh Amendment, “the same

doctrine does not extend to states or state agencies.” Monroe, 495 F.3d at 594 (citing Kentucky v.

Graham, 473 U.S. 159, 167 n. 14 (1985); Pediatric Specialty Care, Inc. v. Ark. Dep’t of Human

Servs., 443 F.3d 1005, 1017 (8th Cir.2006)). There is no basis for invoking Ex parte Young where,

as Ms. Martin has done here, a plaintiff sues only a state agency and not one of its officials.

Monroe, 495 F.3d at 594. Despite noting that ADH may be served through its Secretary pursuant

to Federal Rule of Civil Procedure 4(j)(2)(A), Ms. Martin names ADH, “a state agency,” as the

lone defendant in this lawsuit (Dkt. No. 1., ¶¶ 10–11). However, ADH did not squarely raise this

issue in its moving papers or in a reply to Ms. Martin’s response (Dkt. Nos. 6; 7).

Given the holding of Garrett and Ms. Martin’s acknowledgment that she may not seek

money damages under Title I of the ADA, the Court grants ADH’s motion to dismiss Ms. Martin’s

Title I claims for money damages (Dkt. Nos. 3; 8, at 4). The Court dismisses with prejudice Ms.

Martin’s claims for money damages under Title I of the ADA.

Given Ms. Martin’s decision to sue ADH as an agency rather than name a state official,

and for reasons explained in this Order, the Court, on its own motion pursuant to Federal Rule of

Civil Procedure 12(e), directs Ms. Martin to file a more definite statement by filing an amended

complaint, should she choose to do so, within 21 days from the entry of this Order.

2. ADA Claim – Title V

Based on this Court’s review, neither the Supreme Court nor the Eighth Circuit Court of

Appeals has addressed whether Congress validly abrogated state sovereign immunity in private

actions brought under Title V of the ADA. See, e.g, Lors, 746 F.3d at 864. Citing the Supreme

Court’s decision in Garrett negating Congress’ abrogation of state sovereign immunity in actions

under Title I of the ADA, some courts hold that Title V claims for money damages are barred

when predicated on alleged violations of Title I. See, e.g., Demshki v. Monteith, 255 F.3d 986,

988 (9th Cir. 2001); Reed v. College of the Ouachitas, No. 6:11-cv-6020, 2012 WL 1409772, *5

(W.D. Ark. April 23, 2012) (noting that Supreme Court precedent supports a conclusion that

Congress may not abrogate the states’ Eleventh Amendment immunity from claims brought

pursuant to Title V of the ADA); Morr v. Mo. Dept. of Mental Health, No. 4:08-cv-359-RWS,

2009 WL 1140108, *4 (E.D. Mo. April 28, 2009) (finding Title V claim for damages barred by

the Eleventh amendment). Based on this Court’s review, as recently as 2018, a federal district

court in the Eighth Circuit applied this rationale to a case with similar claims to the claims in the

instant case, ruling that “Plaintiff cannot sue Defendants for damages under Title V of the ADA

on a claim of retaliatory discharge which is predicated upon an alleged violation of Title I.”

Simpson v. Nebraska, No. 4:18-cv-3168, 2018 WL 6618411, at *3 (D. Neb. Dec. 18, 2018).

However, given the Supreme Court’s decision in Tennessee v. Lane, 541 U.S. 509, 523

(2004), “that Title II represented a valid abrogation of sovereign immunity,” the Eighth Circuit has

cautioned against applying the Demshki holding that Title V was not a valid abrogation based

solely on the Supreme Court’s ruling in Garrett. Lors, 746 F.3d at 863-864 (quoting Klingler v.

Dir., Dep’t of Revenue, 455 F.3d 888, 891 (8th Cir. 2006)). Instead, the Eighth Circuit instructs

district courts to apply the United States v. Georgia, 546 U.S. 151, 152 (2006), framework to

determine whether Congress abrogated validly state sovereign immunity under Title V.1 Lors, 746

1 This Court observes that most courts, even those applying the Georgia standard, conclude

that Title V claims for money damages are barred when predicated on alleged violations of Title

I. See e.g. Levy v. Kan. Dep’t of Soc. & Rehab. Servs., 789 F.3d 1164, 1169 (10th Cir. 2015);

Dugger v. Stephen F. Austin State Univ., 232 F. Supp. 3d 938, 951 (E.D. Tex. 2017) (collecting

cases supporting the proposition that “[c]ourts have uniformly held that Title V retaliation claims

premised on employment discrimination under [T]itle I of the ADA are subject to the Eleventh

F.3d at 864. The Georgia framework requires district courts to examine “on a claim-by-claim

basis” the following: (1) which aspects of the State’s alleged conduct violated Title V; (2) to what

extent such conduct also violated the Fourteenth Amendment; and (3) insofar as such conduct

violated Title V but did not violate the Fourteenth Amendment, whether Congress’ purported

abrogation of sovereign immunity in such contexts is nevertheless valid. Lors, 746 F.3d at 864

(quoting Georgia, 546 U.S. at 152). However, a district court applying the Georgia framework

need not determine the validity of Congress’ purported abrogation if “the district court correctly

determine[s] that the retaliation claim fails on the merits.” Lors, 746 F.3d at 864. As a result, this

Court will first examine whether Ms. Martin states a viable prima facie retaliation claim under

Title V of the ADA.

Absent direct evidence of retaliation, claims of retaliation under the ADA are analyzed

under a modified version of the burden shifting framework laid out in McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973). Mershon v. St. Louis Univ., 442 F.3d 1069, 1074 (8th Cir. 2006);

Amir v. St. Louis Univ., 184 F.3d 1017, 1025 (8th Cir. 1999). A plaintiff must first establish the

prima facie case by demonstrating: (1) the plaintiff engaged in a statutorily protected activity, (2)

that an adverse action was taken against the plaintiff by the employer, and (3) a causal connection

exists between the adverse action and the protected activity. Amir, 184 F.3d at 1025. After making

the prima facie showing, the “burden then shifts to the defendant to proffer a legitimate

nondiscriminatory reason for the adverse action.” Id. at 1025-26. “The burden of production then

shifts back to the plaintiff to show that the defendant’s reason is a pretext for discrimination.” Id.

at 1026.

Amendment” and noting cases that have held that no such absolute bar applies to Title V retaliation

claims premised on violations of Title II ).

At the motion to dismiss stage of litigation, the relevant inquiry is whether the plaintiff can

make out the prima facie case. See, e.g., Fesenmeyer v. City of Kansas City, No. 15-00850-cv-W-

DGK, 2016 WL 3167264, at *3 (W.D. Mo. June 6, 2016). Ms. Martin alleges that she satisfies

the first two elements of the prima facie case (Dkt. No. 1, ¶¶ 44, 46). She claims that she sought

a reasonable accommodation pursuant to the ADA and reported her district manager’s comments

before facing numerous adverse employment actions, which ended in her constructive termination

(Id.). Lenzen v. Workers Comp. Reinsurance Ass’n, 843 F. Supp. 2d 981, 993 (D. Minn. 2011),

aff’d, 705 F.3d 816 (8th Cir. 2013) (citing Amir, 184 F.3d at 1025, for the proposition that “an

employee’s conduct is statutorily protected if the employee opposed an act or practice that the

ADA made unlawful.”). Ms. Martin asserts that retaliatory adverse employment actions

culminated in her constructive discharge from ADH (Dkt. No. 1, ¶¶ 44, 46, 50–53).

ADH argues that Ms. Martin cannot make out the third element of the prima facie

retaliation case, arguing that Ms. Martin “has not offered any facts showing a causal connection

between any of her alleged adverse employment actions and her protected activity[,] [arguing that

the] only connection she alleges is that she was put on administrative leave one day after reporting

her district manager for alleged comments about her disability” (Dkt. No. 4, at 17). ADH then

quotes Lors for the proposition that “not every prejudiced remark made at work supports an

inference of illegal employment discrimination.” 746 F.3d at 866 (citing Rivers–Frison v.

Southeast Mo. Cmty. Treatment Ctr., 133 F.3d 616, 619 (8th Cir. 1998)). The Eighth Circuit has

“carefully distinguished between comments which demonstrate a discriminatory animus in the

decisional process or those uttered by individuals closely involved in employment decisions, from

stray remarks in the workplace, statements by non-decisionmakers, or statements by

decisionmakers unrelated to the decisional process.” Lors, 746 F.3d at 866 (citing Rivers–Frison,

133 F.3d at 619).

Having examined Ms. Martin’s complaint, the Court determines that she fails to allege

sufficiently a prima facie claim of retaliation. With respect to protected activity, Ms. Martin first

contends that, after making her accommodation request referencing the ADA, her conditions at

work worsened and that she experienced adverse employment actions (Dkt. No. 1, ¶ 21). Ms.

Martin also contends that “her district manager made statements implying Plaintiff was

exaggerating the impact of her disability, malingering, or using her disability as an excuse. . .” and

that when she “reported these retaliatory actions committed by her district manager,” she engaged

in protected conduct (Dkt. No. 1, ¶¶ 25, 26).

With respect to whether Ms. Martin reporting her district manager’s alleged conduct

constitutes protected activity, under the ADA’s retaliation clause Ms. Martin does not have to

establish that the harassment she reported was in fact prohibited under the ADA. 42 U.S.C. §

12203(a); see also Brannum v. Mo. Dep’t of Corr., 518 F.3d 542, 547 (8th Cir. 2008). Instead, for

her reporting to constitute protected activity, Ms. Martin must prove that she “had a good faith,

reasonable belief that the underlying challenged conduct violated” the ADA. Id. (quoting

Bakhtiari v. Lutz, 507 F.3d 1132, 1137 (8th Cir. 2007)) (internal quotation mark omitted). The

reasonableness of Ms. Martin’s asserted belief must be analyzed “in light of the applicable

substantive law.” Id. At 549; see also Barker v. Mo. Dep’t. of Corr., 513 F.3d 831, 835 (8th Cir.

2008) (stating that the plaintiff must “demonstrate that he had an objectively reasonable belief”

that the reported conduct constituted harassment).

To support her retaliation claim, Ms. Martin maintains, essentially, that she faced a hostile

work environment created by unidentified “coworkers and management” after making her request

for accommodation (Dkt. No. 1, ¶¶ 22-25). Further, Ms. Martin maintains that she was placed on

administrative leave one day after making complaints about her district manager and that she was

constructively discharged (Id., ¶¶ 26, 30).

In Shaver v. Independent Stave Co., the Eighth Circuit held that, in order for a hostile work

environment claim brought under the ADA to be actionable, the “harassment must be both

subjectively hostile or abusive to the victim and ‘severe and pervasive enough to create an

objectively hostile or abusive work environment—an environment that a reasonable person would

find hostile or abusive.’” 350 F.3d 716, 721 (8th Cir 2003) (quoting Harris v. Forklift Sys., Inc.,

510 U.S. 17, 21-22 (1993)). The Eighth Circuit emphasized that “anti-discrimination laws do not

create a general civility code,” and “[c]onduct that is merely rude, abrasive, unkind, or insensitive

does not come within the scope of the law.” Id. “Relevant factors for determining whether conduct

rises to the level of harassment include the ‘frequency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it

unreasonably interfered with an employee’s work performance.’” Pye v. Nu Aire, Inc., 641 F.3d

1011, 1018 (8th Cir. 2011) (quoting Singletary v. Mo. Dep’t of Corr., 423 F.3d 886, 892 (8th Cir.

2005)).

The Eighth Circuit found that the harassment in Shaver did “not rise to the same level as

that in cases where we have granted relief.” Shaver, 350 F.3d at 721. In coming to its conclusion,

the Eighth Circuit noted that the plaintiff had not presented any evidence that: (1) the harassment

was so severe that it resulted in any psychological treatment, (2) the harassment involved

statements—such as death threats—that were “explicitly or implicitly” threatening, or (3) the

harassment included the physical harassment of the plaintiff. Id. At 722. See also Jenkins v. Med.

Lab’ys of E. Iowa, Inc., 880 F. Supp. 2d 946, 964–65 (N.D. Iowa 2012), aff’d, 505 F. App’x 610

(8th Cir. 2013) (determining that plaintiff Jenkins who alleged that her coworkers gave her the

silent treatment, acted annoyed with her, failed to answer questions, acted like they did not want

her to be around, and occasionally slammed doors failed to demonstrate that a reasonable person

could find that this behavior was anything more than rude, abrasive, unkind, or insensitive and

determining that plaintiff did not engage in protected conduct and could not establish a prima facie

case of retaliation under the ADA).

With respect to Ms. Martin’s contention that she was constructively discharged, an

employee is constructively discharged when an employer deliberately renders the employee’s

working conditions intolerable and thus forces the employee to quit her job. Tatum v. City of

Berkeley, 408 F.3d 543, 551 (8th Cir. 2005); West v. Marion Merrell Dow, Inc., 54 F.3d 493, 497

(8th Cir. 1995). To state a claim for constructive discharge, Ms. Martin’s complaint must show

on its face: (1) that a reasonable person in her situation would find the working conditions

intolerable, and (2) that the employer intended to force her to quit. Carpenter v. Con-Way Cent.

Express, Inc., 481 F.3d 611, 616-17 (8th Cir. 2007); see also Johnson v. City of Blaine, 970 F.

Supp. 2d 893, 910 (D. Minn. 2013) (citing Carpenter and applying this framework to a

constructive discharge ADA case). A plaintiff may meet the second element by showing that her

resignation was a reasonably foreseeable consequence of the alleged discriminatory actions.

Carpenter, 481 F.3d at 616-17. “An employee who quits without giving her employer a reasonable

chance to work out a problem is not constructively discharged.” West, 54 F.3d at 498. See also

Vajdl v. Mesabi Acad. Of KidsPeace, Inc., 484 F.3d 546, 553 (8th Cir. 2007).

The Court determines that Ms. Martin has not alleged facts sufficient to state a retaliation

claim. Because she does not identify what her requested accommodation was, when she requested

the accommodation, from whom she requested the accommodation, or whether her employer

granted it, the Court is unable to determine temporal proximity and causation between that conduct

and her alleged adverse employment action. Moreover, even if Ms. Martin engaged in protected

activity by complaining about her district manager’s statements, because Ms. Martin does not

identify who made the decision to place her on administrative leave or whether that individual was

aware of her requested accommodation or the complaints she made the day before about her district

manager, the Court is unable to determine causation between Ms. Martin’s purported protected

conduct and her alleged adverse employment action. Further, given the Eighth Circuit’s

controlling law on actionable hostile work environment and constructive discharge claims, Ms.

Martin’s complaint lacks essential allegations required to state sufficiently those claims.

Although Ms. Martin asserts that she received a poor performance rating (Dkt. No. 1, ¶

27), that “ongoing discriminatory and retaliatory actions committed by Defendant caused

Plaintiff’s health conditions to worsen,” (Id., ¶ 28), and that she “had to seek emergency medical

treatment multiple times due to the stress and anxiety of the situation,” (Id., ¶ 29), the timeline of

these events in relation to her requested accommodation, in relation to her complaint about her

district manager’s comments, in relation to her being placed on administrative leave, and in

relation to her constructive discharge is unclear. Further, she does not identify the individual who

gave her the purportedly poor performance rating or state whether that individual was aware of her

requested accommodation or her complaint about her district manager.

Ms. Martin then alleges that “working conditions were made so intolerable by the

Defendant that she was constructively terminated from her employment on June 17, 2022.” (Id., ¶

30). She does not explain when this occurred in relation to when she requested an accommodation,

in relation to when she complained about her district manager’s comments, in relation to when she

was placed on administrative leave, or in relation to when any of the other allegations in her

complaint occurred. Given these deficiencies, Ms. Martin insufficiently alleges causation and

temporal proximity. For these reasons, the Court determines that Ms. Martin fails to state a prima

facie retaliation claim.

Because the Court finds that Ms. Martin has failed to state a plausible claim for relief under

Title V by alleging a prima facie retaliation claim, the Court declines to proceed to the next inquiry

regarding whether Ms. Martin’s claim under Title V is barred by the Eleventh Amendment. See

Lors, 746 F.3d at 864.

At this stage of the litigation, for the reasons explained in this Order, the Court, on its own

motion pursuant to Federal Rule of Civil Procedure 12(e), directs Ms. Martin to file a more definite

statement by filing an amended complaint, should she choose to do so, within 21 days from the

entry of this Order.

3. ACRA Claims

Ms. Martin also alleges that ADH violated the ACRA by intentionally discriminating

against her on the basis of her “sensory, mental, or physical disability,” resulting in the denial of

her right to obtain and hold employment without discrimination and retaliation (Dkt. No. 1, ¶¶ 36,

38). Ms. Martin seeks injunctive relief, front pay, back pay, attorney’s fees and costs,

compensatory damages for any past or future out-of-pocket losses and any emotional harm, and

punitive damages (Id., ¶ 39). ADH seeks dismissal on this claim, arguing that Arkansas has not

waived its immunity nor consented to this lawsuit (Dkt. No. 4, at 8). In her response, Ms. Martin

admits that “[t]o be fair, Defendant’s Motion properly disallows the money damages remedy of

the ADA Title I and the Arkansas Civil Rights Act counts” (Dkt. No. 8, at 4). Notwithstanding

these admissions, Ms. Martin then argues that Ex parte Young and its progeny save her claim for

equitable relief under the ACRA because these cases hold that “a private party may sue state

officials in their official capacities, which is treated as a suit against the state, for prospective

injunctive relief” (Id.).

Based on Ms. Martin’s admission, the ACRA’s language, and governing case law, the

Court grants ADH’s motion with respect to Ms. Martin’s ACRA claims for “front pay, back pay,

attorney’s fees and costs, compensatory damages for any past or future out-of-pocket losses and

any emotional harm, and punitive damages” and dismisses those claims with prejudice (Dkt. Nos.

1, ¶¶ 1, 39; 3). Ark. Code Ann. § 16-123-107 (stating “[n]othing in this subchapter shall be

construed to waive the sovereign immunity of the State of Arkansas.”); Cooper v. St. Cloud State

Univ., 226 F.3d 964, 968–69 (8th Cir. 2000) (citing Pennhurst State Sch. & Hosp. v. Halderman,

465 U.S. 89, 120–21(1984), and explaining that absent a clear and unequivocal waiver, the

Eleventh Amendment’s bar against hauling a non-consenting state or state agency into federal

Court applies to state-law claims just as equally as those brought under federal law).

The Court next turns to Ms. Martin’s request for injunctive relief pursuant to the ACRA

based on Ex parte Young. Though Ms. Martin may seek prospective injunctive relief against state

officials sued in their official capacity, Ms. Martin fails to name any state official against whom

she seeks injunctive relief (Dkt. No. 1). Ex parte Young, 209 U.S. at 157. However, ADH did not

squarely raise this issue in its moving papers or in a reply to Ms. Martin’s response (Dkt. Nos. 6;

7). Given Ms. Martin’s decision to sue ADH as an agency rather than name a state official, and

for reasons explained in this Order, the Court, on its own motion pursuant to Federal Rule of Civil

Procedure 12(e), directs Ms. Martin to file a more definite statement by filing an amended

complaint, should she choose to do so, within 21 days from the entry of this Order.

Given the Court’s rulings, at this time, the Court does not examine whether Ms. Martin has

failed to state a claim upon which relief may be granted under the ACRA or whether it has

supplemental jurisdiction to hear this claim.

IV. Rule 12(e) Motion

Plaintiffs who file suit pursuant to the ADA, like those who file suit pursuant to Title VII

of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (“Title VII”), must file suit within 90

days of receiving notice of the EEOC’s determination. See 42 U.S.C. § 12117(a) (ADA); 42

U.S.C. § 2000e–5(f)(1) (Title VII).2 Further, although Arkansas Code Annotated § 16-56-126

gives a plaintiff one year to refile an action after a nonsuit, the Arkansas savings statute does not

apply to lawsuits that are governed by a federal statute of limitations, such as ADA claims. See

Garrison v. Int'l Paper Co., 714 F.2d 757, 759 n.2 (8th Cir. 1983) (stating that “[b]ecause Title

VII actions are governed by a federal statute of limitations, the Arkansas saving[s] clause is

inapplicable” (citing Holmberg v. Armbrecht, 327 U.S. 392, 395 (1946))). The Eighth Circuit

Court of Appeals has held that a dismissal without prejudice of a Title VII claim operates to leave

a plaintiff as if no action had been filed. Id. (citing Moore v. St. Louis Music Supply Co., Inc., 539

F.2d 1191, 1194 (8th Cir. 1976)). This same rationale likely applies to an ADA claim.

In other words, if this Court dismisses without prejudice certain of Ms. Martin’s claims

based on legal issues this Court raises for the first time in this Order and that no party squarely

raised in the briefings, this Court’s dismissal without prejudice likely will operate as a dismissal

with prejudice barring Ms. Martin from refiling her claims. See generally Moore v. St. Louis Music

2 Although the 90-day limitations period is subject to equitable tolling in appropriate

circumstances, courts have generally reserved the remedy of equitable tolling for situations in

which the reasons for the delay were beyond the control of the plaintiff. See Hill v. John Chezik

Imports, 869 F.2d 1122, 1124 (8th Cir. 1989) (finding that equitable tolling of the 90-day period

was not appropriate when the plaintiff did not inform the EEOC of her new address).

Supply Co., 538 F.2d 1191 (8th Cir. 1976). For these reasons, the Court, on its own motion

pursuant to Federal Rule of Civil Procedure 12(e), directs Ms. Martin to file a more definite

statement by filing an amended complaint, should she choose to do so, within 21 days from the

entry of this Order.

V. Motion To Stay

The ADH filed a motion to stay discovery and deadlines in the Initial Scheduling Order

(Dkt. No. 6). Ms. Martin opposes the motion (Dkt. No. 9). For good cause shown, given this

Court’s rulings and the current procedural posture of this case, the Court grants ADH’s motion to

stay discovery and deadlines in the Initial Scheduling Order (Dkt. No. 6). If appropriate, the Court

will enter an Amended Initial or Final Scheduling Order in this matter.

VI. Conclusion

For the forgoing reasons, the Court grants, in part, and denies, in part, ADH’s motion to

dismiss (Dkt. No. 3). The Court dismisses with prejudice Ms. Martin’s claims for money damages

pursuant to Title I of the ADA and the ACRA. With respect to Ms. Martin’s claims for injunctive

relief pursuant to the Title I of the ADA and the ACRA and with respect to Ms. Martin’s claims

pursuant to Title V of the ADA, the Court, on its own motion pursuant to Federal Rule of Civil

Procedure 12(e), directs Ms. Martin to file a more definite statement by filing an amended

complaint, should she choose to do so, within 21 days from the entry of this Order. Further, for

good cause shown, the Court grants ADH’s motion to stay this Court’s Initial Scheduling Order

and discovery (Dkt. No. 6).

It is so ordered this the 29th day of September, 2023.

Kashi 4. Palur—

Kristine G. Baker

United States District Judge

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