Murguia v. Childers

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

MARIA MURGUIA PLAINTIFF

Vv. CASE NO. 5:20-CV-5221

CHARISSE CHILDERS, in her official

Capacity as Director of the Arkansas

Division of Workforce Services DEFENDANT

MEMORANDUM OPINON AND ORDER

DENYING MOTION TO DISMISS

Before the Court is a Motion to Dismiss filed by Defendant Charisse Childers and

a Memorandum Brief in Support (Docs. 9 & 10). Plaintiff Maria Murguia filed a Response

in Opposition (Doc. 15) and Defendant filed a Reply (Doc. 22). The Motion (Doc. 9) is

now ripe for decision. For the reasons explained below, it is DENIED.

I. BACKGROUND

A. Procedural Background

The Arkansas Division of Workforce Services (“ADWS’ or “DWS"”) administers the

state’s unemployment benefit program, also known as unemployment insurance or “UI.”

The federal government provides a portion of the funding for state UI programs and

imposes requirements on those programs as a condition of federal funding. The

Secretary of Labor is the federal official charged with oversight of state compliance with

the federal requirements. See 42 U.S.C. § 503. Pursuant to this authority, the Secretary

has promulgated regulations that govern the federal-state UI program. These guidelines

include expectations for timeliness of processing and payment and requirements for

ensuring that applicants with limited English proficiency are provided with adequate

service. For example, in assessing state compliance with the requirement that UI

payments be timely made, the Secretary of Labor requires that 93% of all initial payments

be made within 35 days of the end of the first compensable week and that 87% of initial

payments be made within 21 days. See 20 C.F.R. § 640.5. The Department of Labor

also instructs that “[s]tate UI agencies should provide adequate notice to [limited-English-

proficient] individuals of the existence of interpretation and translation services and that

they are available free of charge.” Dep't of Labor, Emp. & Training Admin.,

Unemployment Insurance Program Letter No. 02-16, at 8 (Oct. 1.2015). The same Letter

also instructs that vital documents should be translated into languages spoken by a

significant portion of the population to be served, and that “Ul agency staff should be

trained to identify language access barriers and provide affected claimants alternative

access options.” /d. at 10.

In response to the COVID-19 pandemic, Congress created the Pandemic

Unemployment Assistance (“PUA”) program, which provides benefits for individuals

whom the pandemic has prevented from working but who do not qualify for traditional UI.

See 15 U.S.C. § 9021. An individual cannot be considered for PUA until it has been

determined that she is not eligible for Ul. See Dep't of Labor, Emp. & Training Admin.,

Unemployment Insurance Program Letter No. 16-20, Attachment 1, at I-9 (Apr. 5, 2020).

When an individual is deemed ineligible for Ul, however, the state agency is required to

determine whether that individual may be eligible for PUA and provide her notice of her

eligibility and instructions on how to apply for PUA. See Dep’t of Labor, Emp. & Training

Admin., Unemployment Insurance Program Letter No. 16-20 Change 1, Attachment 1, at

(Apr. 27, 2020).

Arkansas state laws and regulations pertaining to the Ul program do not impose

any specific requirements defining promptness or language access. State law does

provide that DWS will notify the claimant's last employer and all base period employers

of a Ul claim and that if such employers fail to respond within 10 and 15 days respectively,

they will be deemed to have waived the right to respond. See Ark. Code Ann. §§ 11-10-

505(a)(2)(A) & 11-10-521(b)(2)(A).

B. Factual Background

Plaintiff Maria Murguia is an immigrant from Mexico and a lawful permanent

resident of the United States who resides in Fayetteville, Arkansas. She has limited

proficiency in English. Ms. Murguia has worked for many years as a cleaner and

housekeeper. In November 2019, Ms. Murguia left a job at Molly Maid and began working

at a Holiday Inn. In mid-March 2020, Ms. Murguia was laid off from Holiday Inn because

the Covid-19 pandemic reduced the hotel's staffing needs. Ms. Murguia alleges that the

following week, she traveled to DWS'’s Fayetteville office to apply for Ul. She brought her

daughter to help her communicate in English. Ms. Murguia alleges that even though it

was clear that she had limited proficiency in English, no one at DWS offered her a

translator, nor did she see any signs informing her that translation services were

available. Since this first visit in March 2020, Ms. Murguia has filed a weekly UI claim

using the DWS call-in line.

On June 10, 2020, Ms. Murguia received a Notice of Agency Determination that

referenced Molly Maid as her employer and denied her UI benefits, claiming that she was

not eligible because she left her job in November 2019 to take another job. The

substantive information in the Notice was in English, though it contained an admonition

in Spanish that the notice was important and the recipient should seek translation

assistance from the local DWS office. See Doc. 2-1. Ms. Murguia appealed the Notice

and on July 16, 2020, received a Notice of Telephone Hearing. This Notice provided the

date and time of the hearing and a single-spaced page of instructions and was written

only in English. See Doc. 2-2. Ms. Murguia alleges that she withdrew her request for

appeal because she did not know how to participate in the hearing and because she

believed DWS had made a mistake regarding her employer. When her first claim was

rejected in June 2020, Ms. Murguia alleges that she was not informed that she might be

eligible for PUA.

On August 25, 2020, Ms. Murguia returned to the DWS Fayetteville office with her

daughter and again applied for Ul. At that time, Ms. Murguia spoke with a DWS employee

who said Ms. Murguia had incorrectly listed her employer as Molly Maid and directed her

to return with pay stubs from her job at Holiday Inn. The next day, Ms. Murguia and her

daughter returned with the requested pay stubs and spoke with the same employee. At

that time, however, Ms. Murguia alleges that the employee refused to accept the pay

stubs and told Ms. Murguia that she could not file another application for unemployment

benefits until she worked another job for thirty days or more. Ms. Murguia alleges that

the employee refused to help her in any way and was hostile and unfriendly. As with

her first visit, Ms. Murguia was not offered translation services or informed that such

services were available.

The next month, Legal Aid of Arkansas contacted DWS on Ms. Murguia’s behalf,

and she was put in contact with a Spanish-speaking employee to assist her. On

September 23, 2020, Ms. Murguia believes that either her previous application was

reopened or that a new application was initiated for her. The next week, Ms. Murguia

received a Notice of Agency Determination that acknowledged the June determination to

have been “issued in error’ since it listed the incorrect employer. The Notice indicated

that Holiday Inn would be notified of Ms. Murguia’s claim and a new determination would

be issued. A month later, Ms. Murguia was told that DWS was still waiting for information

from Holiday Inn, and the next week she was mailed additional forms to complete. The

forms were in English, and the Spanish-speaking employee did not respond to Ms.

Murguia’s request for assistance, so she completed the forms to the best of her ability

and returned them. Since she returned the forms on November 9, Ms. Murguia’s UI

application has remained pending without update. However, on December 15, 2020,

DWS contacted Ms. Murguia by phone to confirm again that she was laid off.from her job

at Holiday Inn and had not quit and then asked about the immigration status of her

coworkers there. When she declined to provide any information, Ms. Murguia alleges

that she was told her case would be closed.

Ms. Murguia filed her Complaint before this Court on December 18, 2020, raising

three claims against Dr. Childers in her official capacity as the director of DWS. First, Ms.

Murguia alleges that Defendant is intentionally discriminating against her as a Spanish-

speaking Mexican immigrant, in violation of Title VI of the Civil Rights Act, 42 U.S.C.

§ 2000d. In particular, Ms. Murguia points to DWS’s failure to provide meaningful

language access, the hostility of the DWS employee at the Fayetteville office and his

refusal to provide service during her August visit, the coercive nature of the questioning

about the immigration status of Ms. Murguia’s coworkers at Holiday Inn, and the

deprivation of benefits from the unexplained delays in processing her UI application.

Second, Ms. Murguia brings a claim under the Due Process Clause of the Fourteenth

Amendment, alleging that Defendant’s failure to provide language access and the delay

in making an accurate determination on her application for unemployment benefits

amounts to constructive denial without procedural due process. Finally, Ms. Murguia

makes a claim under state law for injunctive relief because Defendant's conduct in

processing her application is arbitrary, capricious, wantonly injurious, or in bad faith.

Defendant has moved to dismiss.

ll. DISCUSSION

Defendant offers three bases on which Ms. Murguia’s Complaint should be

dismissed. First, Defendant makes two challenges to this Court's subject-matter

jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure—that

sovereign immunity bars Ms. Murguia’s claim for declaratory judgment, and that the

Administrative Procedures Act precludes review of agency adjudications by this Court.

Defendant then asserts that each of Ms. Murguia’s claims fails to state a claim for which

relief can be granted and should be dismissed pursuant to Rule 12(b)(6). The Court takes

up each argument in turn and concludes that each one is without merit.

A. Subject-Matter Jurisdiction

1. Sovereign Immunity

Defendant first asserts that the Ex parte Young exception to state sovereign

immunity does not apply here because Ms. Murguia seeks a declaratory judgment that is

retrospective, not prospective. Defendant does not make clear which claims she believes

can be dismissed on this basis. After all, the Supreme Court has recognized that

Congress validly and “expressly abrogated States’ sovereign immunity against suits

brought in federal court to enforce Title VI and provided that in a suit against a State[,]

remedies (including remedies both at law and in equity) are available to the same extent

such remedies are available” in any other suit. Alexander v. Sandoval, 532 U.S. 275, 280

(2001) (cleaned up). Thus, Ex parte Young is not relevant to Ms. Murguia’s Title VI claim,

and she is entitled to seek declaratory and injunctive relief and compensatory damages

on that claim.

The Court therefore assumes that Defendant's Ex parte Young argument pertains

only to Ms. Murguia’s procedural due process claim. Defendant argues that Ms.

Murguia’s requested relief is retrospective because she “seeks to control the actions of

the state agency and to declare that ADWS'’s past policies and practices are unlawful.

The fact that those policies might continue is not enough to make Plaintiffs request

prospective.” (Doc. 10, p. 7). But Defendant has it exactly wrong—that is precisely the

type of relief that Ex parte Young entitles Ms. Murguia to seek. To find that the Ex parte

Young exception permits suit against a state officer in her official capacity, “a court need

only conduct a straightforward inquiry into whether the complaint alleges an ongoing

violation of federal law and seeks relief properly characterized as prospective.” Verizon

Md. Ine. v. Public Serv. Comm'n of Md., 535 U.S. 635, 645 (2002) (cleaned up). In other

words, Ex parte Young applies where the plaintiff alleges that the state agency has in the

past violated, and continues to violate, a federal law and seeks relief that would modify

the agency’s behavior in the future to end the violation. That is exactly what Ms. Murguia

has done here: She alleges that Defendant has violated her rights under the Due Process

Clause and has asked the Court to give DWS specific instructions about how it must

handle her case going forward so as to respect her due process rights.

>

Nor is the Court concerned that the language of the declaratory judgment Ms.

Murguia requests could be construed as retrospective. See Doc. 2, p. 30 (seeking a

declaratory judgment that “Defendants’ actions, policies, procedures, and practices are

in violation of Title VI and the Fourteenth Amendment of the U.S. Constitution’). In

Verizon, the plaintiff “sought injunctive and declaratory relief, alleging that the

Commission's order requiring payment of reciprocal compensation was pre-empted by

the 1996 Act and an FCC ruling.” 535 U.S. at 645. The Supreme Court held that the

plaintiffs “prayer for injunctive relief—that state officials be restrained from enforcing an

order in contravention of controlling federal law—clearly satisfies our ‘straightforward

inquiry.” /d. The Court acknowledged that the prayer for declaratory relief “seeks a

declaration of the past, as well as the future, ineffectiveness of the Commission's action.”

Id. at 646 (emphasis in original). However, the Court concluded that Ex parte Young

permitted the plaintiffs suit because “no past liability of the State, or of any of its

commissioners, is at issue. It does not impose upon the State a monetary loss resulting

from a past breach of a legal duty on the part of the defendant state officials.” Id. (cleaned

up) (emphasis in original).

Ms. Murguia’s procedural due process claim against Defendant does not entitle

her to seek money damages, which she recognizes. As such, a finding of retrospective

liability as to this claim imposes no past liability on the state. In accordance with Verizon,

dismissal is not appropriate where, as here, a request for a declaratory judgment is

phrased so as to include past practices, but “[i]nsofar as the exposure of the State is

concerned, the prayer for declaratory relief adds nothing to the prayer for injunction.” /d.

at 646. Therefore, Defendant's attempt to invoke sovereign immunity as a defense to Ms.

Murguia’s Fourteenth Amendment claim is unpersuasive.

Defendant’s reliance on Justice Network, Inc. v. Craighead County, 931 F.3d 753

(8th Cir. 2019), to argue the contrary is misplaced. The plaintiff in Justice Network brought

suit pursuant to 42 U.S.C. § 1983 and sought money damages, declaratory judgment,

and injunctive relief. The Eighth Circuit first concluded that the defendants, who were

state-court judges, were immune from a suit for damages and that § 1983 barred a claim

for prospective injunctive relief. Turning to declaratory relief, the Eighth Circuit concluded

that the declaratory relief sought would serve only to declare a past violation of the law

and not to “define the legal rights and obligations of the parties in anticipation of some

future conduct.” Id. at 764 (emphasis in original). In other words, since prospective

injunctive relief was not available, there was nothing forward-looking about the

declaratory judgment the plaintiff sought in Justice Network.

While Defendant's attempt to invoke sovereign immunity as to Ms. Murguia’s

federal-law claims is entirely without merit, it does appear to the Court that sovereign

immunity may bar her state-law claim. Count Three of the Complaint is premised on the

availability of injunctive relief under Arkansas state law to prevent state action that is

arbitrary, capricious, in bad faith, or wantonly injurious. Ms. Murguia argues that

injunctive relief is therefore available under state law because Defendant lacks a

legitimate justification for the delay in determining her eligibility for benefits. In Pennhurst

State School and Hospital v. Halderman, 465 U.S. 89 (1984), however, the Supreme

Court held that “a federal suit against state officials on the basis of state law contravenes

the Eleventh Amendment,” jd. at 117, even when the relief sought is prospective injunctive

relief that would have been available had the claim rested on federal law, see id. at 104.

Nor can supplemental jurisdiction save such claims. See id. at 120-121. Since

Defendant did not raise this issue in her briefing, the Court hereby notifies the parties that

it will take up at the hearing on March 15, 2021, the question of whether it should sua

sponte dismiss Ms. Murguia’s state-law claim for lack of subject-matter jurisdiction.

2. Administrative Procedure and Exhaustion

Defendant's second argument regarding subject-matter jurisdiction is that this

Court cannot review an administrative decision by DWS because Ms. Murguia has not

yet received a final adjudication of her UI application and has not exhausted the

administrative appeal process. In her initial Brief in Support, Defendant invokes the

Administrative Procedure Act—presumably the state and not the federal law, though

Defendant does not specify—but Ms. Murguia points out in response that Arkansas Code

§ 25-15-202(2)(C) expressly excludes DWS from the definition of “agency” under the

statute except in specific circumstances not relevant here. In her Reply Brief, Defendant

appears to abandon a specific statutory basis for her claim and falls back on “[a] basic

rule of administrative procedure” that “an agency be given the opportunity to address a

question before a claimant resorts to the courts” and urges that the Complaint be

dismissed for failure to exhaust administrative remedies. (Doc. 22, pp. 2-3).

This argument, however, mischaracterizes Ms. Murguia’s claims. She is not

asking this Court to review a decision by DWS. Her claims cannot be construed as an

appeal of a determination by DWS because Ms. Murguia has not been granted or denied

benefits. Rather, Ms. Murguia alleges that, in the process of administering the UI and

PUA programs generally, Defendant violates federal law by intentionally discriminating

Af)

against her and denying her due process by delaying inordinately in determining her

eligibility for benefits. These are claims against the manner in which Defendant

administers the program, not an appeal of or challenge to a specific agency decision. Ms.

Murguia’s claims cannot fairly be construed as attempting “to re-argue her unemployment

claims in this Court,” (Doc. 10, p. 10), and the Administrative Procedures Act (or the

general principles of administrative procedure) has no relevance here.

B. Failure to State a Claim

1. Title VI

Next, Defendant argues that Ms. Murguia has failed to establish that Defendant is

intentionally discriminating against her, in violation of Title VI of the Civil Rights Act.

Defendant does not lay out the elements of a Title VI claim or specify which element she

believes Ms. Murguia has not adequately alleged. Instead, Defendant first argues that

Ms. Murguia has failed to state a claim because she listed the wrong employer on her

initial UI application. In support of this claim, Defendant attaches as Exhibit A a form titled

“Application for Unemployment Insurance Benefits,” dated April 8, 2020, that lists Ms.

Murguia’s last employer as “Molly Maid of Northwest Arkans [sic].” (Doc. 10-1, p. 1). The

form has been completed electronically and does not bear any signature. Defendant

argues that this document is necessarily embraced by the pleadings because it is the

initial Ul application that Ms. Murguia completed. Ms. Murguia objects to the

consideration of Exhibit A, arguing that it is not embraced by the pleadings because it is

offered as evidence to support Defendant's position and contradict the Complaint.

The Court agrees with Ms. Murguia that the proffered attachment must be

excluded from consideration in ruling on the Motion to Dismiss. The Eighth Circuit “view[s]

4a

‘matters outside the pleading’ as including any written or oral evidence in support of or in

opposition to the pleading that provides some substantiation for and does not merely

reiterate what is said in the pleadings.” BJC Health Sys. v. Columbia Cas. Co., 348 F.3d

685, 687 (8th Cir. 2003). Exhibit A is clearly offered in opposition to the pleading—as the

Eighth Circuit queried, “For what purpose would [the defendant] have provided the

documents to the district court, other than to discredit and contradict [the plaintiff's]

allegations?” /d. at 688. In fact, in her Reply Brief, Defendant explicitly states that “the

application [in Exhibit A] is detrimental to Murguia’s claim that DWS’s employee falsely

accused her in listing Molly Maid as the last employer.” (Doc. 22, pp. 1-2). Additionally,

Exhibit A does not contain sufficient indicia of reliability for the Court to conclude that it is

what Defendant claims it is, especially given that it directly contradicts several of Ms.

Murguia’s factual allegations in the Complaint—namely, that she first filed for

unemployment benefits in mid-March and that she listed Holiday Inn as her most recent

employer. See Doc. 2, For these reasons, the Court will not consider Exhibit A in

ruling on Defendant’s Motion to Dismiss.

Defendant’s only other argument relevant to the Title VI claim is that Ms. Murguia

has not alleged intentional discrimination because “[t]here are no allegations that at the

time of submitting her application, Ms. Murguia requested a translator or that her request

for transiator [sic] was denied.” (Doc. 10, p. 3). Rather, Ms. Murguia “authorized her

adult daughter to communicate with ADWS on her behalf.” /d. at 3-4. This argument

fails for two reasons. First, it is sufficiently alleged in the Complaint that DWS had an

independent duty to make language access services available for applicants with limited

proficiency in English because of their national origin. See, e.g., Doc. 2, | 108. More

49

broadly, however, Defendant’s argument fails because it ignores the other components

that together Ms. Murguia argues establish a prima facie case of discrimination under

Title VI.

In her response to Defendant's Motion, Ms. Murguia acknowledges that Title VI

only provides a private right of action for instances of intentional discrimination. However,

Ms. Murguia points out that “[W]here there is no direct evidence of discrimination, the

plaintiff may rely upon the three-step burden-shifting framework established in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), for Title VIi claims” to make a claim for

discrimination under Title VI. Rowles v. Curators of Univ. of Mo., 983 F.3d 345, 355 (8th

Cir. 2020) (applying McDonnell Douglas in analyzing a Title VI claim for discrimination on

the basis of race). “To establish a prima facie case of discrimination under Title VI, the

plaintiff must show (1) that the defendant is receiving federal funds, (2) that the plaintiff

was discriminated against, and (3) the plaintiff's race, color, or national origin was the

motive for the discriminatory conduct.” Scarlett v. Sch. of Ozarks, Inc., 780 F. Supp. 2d

924, 933-34 (W.D. Mo. 2011). “If the plaintiff establishes a prima facie case, the burden

shifts to the defendant to proffer a legitimate, nondiscriminatory reason for its decision.”

Rowles, 983 F.3d at 355. “If the defendant proffers such a reason, the burden shifts back

to the plaintiff to show that the proffered reason was mere pretext for discrimination.” /d.

Additionally, the Eighth Circuit has emphasized that “there is no rigid pleading standard

for discrimination cases,” and the elements of a prima facie case are merely “part of the

background against which a plausibility determination should be made.” Cook v.

George’s, Inc., 952 F.3d 935, 939 (8th Cir. 2020) (cleaned up).

42

Defendant does not dispute that this is an appropriate framework for the Court to

use in analyzing Ms. Murguia’s Title VI claim. In fact, though Defendant was granted

leave to file a Reply Brief in support of the Motion, the Reply only rehashes Defendant's

sovereign immunity and administrative procedure arguments and does not address any

of the arguments as to the sufficiency of the pleadings. Despite the lack of substantive

briefing from the Defendant on this point, the Court interprets Defendant's argument to

be that because Ms. Murguia did not request a translator and brought her daughter to

assist her, she has failed to make a plausible claim of discrimination. The Court

disagrees.

The Complaint includes sufficient factual allegations to establish a prima facie case

of discrimination on the basis of national origin. Specifically, the Complaint alleges that

DWS receives federal funding to administer the unemployment benefit programs; DWS

workers were hostile to Ms. Murguia because of her identity as a Mexican immigrant and

her lack of proficiency in English; DWS failed to abide by its obligation to provide Spanish-

language services; Ms. Murguia was questioned about the immigration status of her

former coworkers; and DWS has still failed to make a determination as to Ms. Murguia’s

eligibility for UI because of its belief that Ms. Murguia is undocumented. Since Ms.

Murguia has established a prima facie case, the burden now shifts to Defendant to

provide a nondiscriminatory reason for its treatment of Ms. Murguia.'

1 In her Brief in Opposition, Ms. Murguia argues that deliberate indifference can also

satisfy the discriminatory intent requirement, citing Meagley v. City of Little Rock, 639

F.3d 384 (8th Cir. 2011). Again, Defendant made no attempt to discuss the elements of

a Title VI claim in the initial Brief in Support and did not respond to Ms. Murguia’s

arguments in the Reply. Nevertheless, the Court is not persuaded that the deliberate

indifference standard is appropriate here. Meagley involves ADA claims. While the court

in Meagley does analogize from the Title VI context, it agrees with the district court's

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2. Procedural Due Process

Defendant argues that Ms. Murguia has failed to state a procedural due process

claim for the same reasons she failed to state a Title VI claim: Exhibit A establishes that

it was Ms. Murguia’s own error on her initial UI application, and she chose to rely on her

daughter for help and did not request a translator. The Court has already explained why

it will exclude Defendant's Exhibit A from consideration as outside the pleadings. Thus,

the only question Defendant raises for the Court's resolution is whether Ms. Murguia’s

failure to affirmatively request a translator means she has failed to state a procedural due

process claim under the Fourteenth Amendment.

“Procedural due process imposes constraints on governmental decisions which

deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process

Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332

(1976). To establish a procedural due process violation, the plaintiff must show that “(1)

he had a life, liberty, or property interest protected by the Due Process Clause; (2) he was

conclusion that “deliberate indifference was the appropriate standard for showing

intentional discrimination in this type of case” and cites to other cases involving ADA

claims. /d. at 389 (emphasis added). Other circuit courts have applied the deliberate

indifference standard to Title VI claims for race discrimination in the specific context of

third-party harassment, analogizing from the Supreme Court’s reasoning in dealing with

a harassment claim under Title IX in Davis v. Monroe County Board of Education, 526

U.S. 629 (1999). See Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 408 (5th Cir.

2015) (holding that “the correct analytical framework for a Title Vi student-on-student

harassment claim is the deliberate indifference standard”); see also Zeno v. Pine Plains

Centr. Sch. Dist., 702 F.3d 655, 665 (2d Cir. 2012) (“[I]n the educational setting, a school

district is liable for intentional discrimination when it has been “deliberately indifferent” to

teacher or peer harassment of a student.”). Thus, while the Court finds that the McDonnell

Douglas framework is applicable and denies the Motion to Dismiss, the Court is not yet

persuaded that the law is as clear as Ms. Murguia implies that deliberate indifference is

also an appropriate standard for assessing discriminatory intent for Title VI claims in this

context.

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deprived of this protected interest; and (3) the state did not afford him adequate

procedural rights prior to depriving him of the property interest.” Stevenson v. Blytheville

Sch. Dist., 800 F.3d 955, 966 (8th Cir. 2015).

Defendant does not provide any substantive briefing on this point. She does not

indicate the elements of a procedural due process claim she believes Ms. Murguia must

plead and explain how the pleadings are inadequate. Nor does Defendant's Reply Brief

address in any way the extensive substantive discussion of the procedural due process

claim in Ms. Murguia’s Response in Opposition. Specifically, Defendant does not dispute

that Ms. Murguia has a property interest in Ul or PUA that is protected by the Due Process

Clause. Nor does Defendant dispute that the delay in adjudicating Ms. Murguia’s

application is a constructive deprivation of her interest in such benefits. Defendant argues

only that DWS’s failure to provide written information in Spanish or to offer Ms. Murguia

a translator does not abridge her due process rights.

However, Defendant does not provide any authority to support the assertion that

DWS'’s failure to adhere to federal guidance regarding language access is insufficient to

state a claim for a due process violation. In fact, the case law the Court has reviewed

suggests the opposite. For example, a district court in Minnesota denied a preliminary

injunction for an alleged due process violation where the state agency had a plan in place

to provide meaningful language access and there was “no evidence that the [state

agency] violated this plan in its communications with [the plaintiff] . . . and, in fact, the

[agency's] actions appear to be consistent with the plan.” Awnuh v. Pub. Housing Ag. of

City of Saint Paul, 2019 WL 6492465, at *5 (D. Minn. Dec. 3, 2019); see also Reyes v.

Clarke, 2019 WL 4044316, at *22 (E.D. Va. Aug. 27, 2019) (holding that the plaintiff “has

16

stated a viable due process claim” where he alleged that the administrative reviews “were

not meaningful” because they were “conducted in English, a language he does not

understand”).

The Court finds that Ms. Murguia has adequately pleaded that DWS has an

affirmative obligation to provide meaningful language access services. As cited in the

procedural background section above, the federal Department of Labor requires state Ul

agencies to translate vital documents into languages spoken by a significant portion of

the service population, to provide translation services free of charge, and to identify

applicants who might benefit from such services and make known their availability. See

Dep't of Labor, Emp. & Training Admin., Unemployment Insurance Program Letter No.

02-16, at 8-10 (Oct. 1. 2015). Ms. Murguia alleges, however, that she was never

informed of the availability of translation services and that the letters DWS sent to her

regarding important aspects of her UI application, such as her initial denial and her appeal

rights, were provided only in English. The Court is satisfied that Ms. Murguia has

adequately pleaded that DWS has an obligation to meet her language needs that was not

absolved by her daughter's presence and that DWS failed to fulfill that obligation.

As the Court noted above, Defendant does not address at all Ms. Murguia’s

allegation that the agency's unexplained delay in adjudicating Ms. Murguia’s second UI

application and failure to notify her of her possible eligibility for PUA constitute

constructive denial of benefits and a violation of her due process rights. Upon its own

review, however, the Court is satisfied that Ms. Murguia’s allegations support a

procedural due process claim. Ms. Murguia has directed the Court to Eighth Circuit case

law recognizing in the context of an administrative claim for worker's compensation, that

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some point a delay in the opportunity for administrative and judicial review can

amount to a denial of due process” and that a delay should be assessed for its

reasonableness. Meehan Seaway Serv. Co. v. Dir., Off. Workers’ Comp. Programs, 125

F.3d 1163, 1170 (8th Cir. 1997). Additionally, in Mathews, the Supreme Court

emphasized that “[d]ue process, unlike some legal rules, is not a technical conception

with a fixed content unrelated to time, place and circumstances. Due process is flexible

and calls for such procedural protections as the particular situation demands.” 424 U.S.

at 334 (cleaned up). These authorities instruct the Court that the analysis of what process

is due under the Fourteenth Amendment is context-specific and fact-dependent. At this

stage, the Court accepts as true Ms. Murguia’s allegation that she gave the correct

information to DWS in March and that the initial denial of her benefits was due to DWS’s

error, that DWS continued to wait for information from Ms. Murguia’s employer long after

the response period provided by state law, and that DWS is delaying resolution of her

claim while it investigates the immigration status of other Holiday Inn employees. The

Court is persuaded that it could reasonably infer from these facts that DWS’s delay in

processing Ms. Murguia’s UI application (a necessary precondition for her to apply for

PUA), which far exceeds the 35-day target set by the Secretary of Labor, is unreasonable,

and Ms. Murguia has pleaded a violation of her procedural due process rights under the

Fourteenth Amendment.?

2 Defendant also argues that the Complaint fails to state a claim for a violation of Ms.

Murguia’s substantive due process rights. However, since Ms. Murguia alleges only a

procedural due process claim, the Court does not address this aspect of Defendant's

Motion.

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3. State Law Claim

Finally, Defendant makes no substantive argument as to Ms. Murguia’s state law

claim. Defendant makes only the general assertion that it fails to provide facts in support

and is merely a formulaic recitation of the elements of the cause of action.* A review of

the Complaint, however, makes clear that Ms. Murguia has put forward facts to support

her assertion that Defendant's conduct has been arbitrary, capricious, wantonly injurious,

or in bad faith. Since Defendant makes no further argument, and since the Court, as

discussed above, is concerned that it does not have subject-matter jurisdiction over Ms.

Murguia’s state-law claim, the Court will not analyze this claim further. However, should

the Court not dismiss the claim on the basis of sovereign immunity, the Court finds that it

is adequately pleaded to survive Defendant’s Rule 12(b)(6) motion.

IV. CONCLUSION

For these reasons, IT IS ORDERED that Defendant Charisse Childers’s Motion to

Dismiss (Doc. 9) is DENIED. )

IT IS SO ORDERED on this Ee day of March, a

ZA

OPAY L. BRQOKS

U a states DISTRICT JUDGE

3 The second paragraph in this section of Defendant's Brief in Support makes an

argument about claims pursuant to § 1983 and the Arkansas Civil Rights Act that are not

relevant to Ms. Murguia’s Complaint and which the Court therefore does not address.

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