Ward v. Tennessee Department of Education

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

DR. NANCYLYNN WARD, )

)

Plaintiff, )

)

v. ) NO. 3:19-cv-00218

)

TENNESSEE DEPARTMENT ) JUDGE CAMPBELL

OF EDUCATION, ) MAGISTRATE JUDGE HOLMES

)

Defendant.

MEMORANDUM

I. Introduction

Pending before the Court are Defendant’s Motion for Partial Dismissal (Doc. No. 7);

Plaintiff’s Response (Doc. No. 12); and Defendant’s Reply (Doc. No. 13). For the reasons set forth

below, Defendant’s Motion is GRANTED in part, and DENIED in part. Accordingly, the

following are DISMISSED: (1) Plaintiff’s ADA Title II claims; (2) Plaintiff’s request for

declaratory and injunctive relief under the ADA; and (3) Plaintiff’s request for punitive damages.

In all other respects, the Motion is denied.

II. Factual and Procedural Background

The claims in this case arise out of Plaintiff’s tenure as the Superintendent of the Tennessee

School for the Deaf (“TSD”) from July 17, 2017 to March 19, 2018. (Doc. No. 1). Plaintiff alleges

she is deaf, and Defendant failed to accommodate her disability, in violation of the Americans

With Disabilities Act, 42 U.S.C. §§ 12101, et seq., (“ADA”), and the Rehabilitation Act, 29 U.S.C.

§§ 701, et seq. (“Rehabilitation Act”); discriminated against her based on her disability and

subjected her to a discriminatory hostile work environment, in violation of the ADA and the

Rehabilitation Act; subjected her to retaliation and a retaliatory hostile work environment, in

violation of the ADA and the Rehabilitation Act; and discriminated against her based on her

gender, in violation of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et seq. (“Title VII”).

(Id.)

III. Analysis

A. The Standards Governing Motions to Dismiss

In considering a motion to dismiss, a court must determine whether the plaintiff has

sufficiently alleged “a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (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. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937,

1949, 173 L. Ed. 2d 868 (2009). Well-pleaded factual allegations are accepted as true and are

construed in the light most favorable to the nonmoving party. 129 U.S. at 1950; Mills v. Barnard,

869 F.3d 473, 479 (6th Cir. 2017).

B. ADA Claims and Sovereign Immunity

Defendant argues Plaintiff’s ADA claims for money damages must be dismissed because

the Eleventh Amendment bars such relief. Plaintiff seeks money damages under Title II of the

ADA for failure to accommodate and discrimination, and under Title V of the ADA for retaliation.

Determining whether the Eleventh Amendment bars Plaintiff’s request for money damages

requires the Court to address these claims separately. Defendant does not address the issue of

whether the Eleventh Amendment bars claims under Title V, and the Court declines to address the

issue in the absence of briefing by the parties. See Levy v. Kansas Dep't of Soc. & Rehab. Servs.,

789 F.3d 1164, 1169 (10th Cir. 2015) (discussing the divergence of opinion on the issue).

2

As for the Title II claims, Defendant argues, as a state department, it is entitled to Eleventh

Amendment sovereign immunity with regard to those claims. Eleventh Amendment jurisprudence

holds that “an unconsenting State is immune from suits brought in federal courts by her own

citizens as well as by citizens of another State.” Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347,

1355, 39 L.Ed.2d 552 (1974). A state department or agency is also entitled to Eleventh Amendment

immunity if the state itself would be liable for money damages awarded against the department or

agency. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S. Ct. 900, 79 L.Ed.2d

67 (1984); Boler v. Earley, 865 F.3d 391, 410 (6th Cir. 2017). Plaintiff does not dispute that

Defendant is a department of the State of Tennessee. (Doc. No. 1 ¶ 2). Rather, Plaintiff argues the

Eleventh Amendment does not apply to her Title II claims because the State of Tennessee has

consented to waive sovereign immunity for those claims.

Courts have recognized three exceptions to Eleventh Amendment immunity: (1) when the

state has consented to suit; (2) when Congress has abrogated the state’s immunity; and (3) when

Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908) applies. See, e.g., S&M Brands,

Inc. v. Cooper, 527 F.3d 500, 507 (6th Cir. 2008). Plaintiff argues Defendant “likely” had to consent

to waive sovereign immunity in order to receive federal funding to operate TSD. Plaintiff has not

cited any specific language in the Complaint, however, alleging Defendant has waived sovereign

immunity for ADA claims in exchange for receipt of federal funding. Nor has Plaintiff cited any

authority otherwise establishing that fact. Cf. Nihiser v. Ohio E.P.A., 269 F.3d 626 (6th Cir. 2001)

(holding states validly waive Eleventh Amendment immunity for Rehabilitation Act claims by

participating in programs funded by the Act, as evidenced by 42 U.S.C. § 2000d-7.) Therefore,

Plaintiff has not established an exception to Eleventh Amendment immunity based on consent.

3

Plaintiff also argues Eleventh Amendment immunity does not apply because Congress

abrogated the states’ immunity when it enacted Title II. Title II of the ADA governs disability

discrimination involving public services, programs, and activities. 42 U.S.C. § 12132;1 Babcock

v. Michigan, 812 F.3d 531, 535 (6th Cir. 2016).2 Although Congress expressed a desire in the

provisions of the ADA to abrogate Eleventh Amendment immunity for violations of the ADA, see

42 U.S.C. § 12202, the Supreme Court has held the attempt at abrogation is valid only in limited

circumstances, and turns on the nature of the ADA claim at issue. Board of Trustees of Univ. of

Alabama v. Garrett, 531 U.S. at 367-68. For example, the Court has held abrogation is valid for,

and Eleventh Amendment immunity does not apply to, Title II ADA claims alleging denial of “the

fundamental right of access to the courts,” Tennessee v. Lane, 541 U.S. 509, 533-34, 124 S. Ct.

1978, 158 L.Ed.2d 820 (2004),3 or to claims alleging conduct that independently violates the

Fourteenth Amendment, such as those brought by prisoners alleging cruel and unusual punishment

1 Section 12132 provides:

Subject to the provisions of this subchapter, no 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.

2 Title I governs disability discrimination in employment. 42 U.S.C. §12112. Plaintiff has not brought her

claims under Title I, as she presumably recognizes the Eleventh Amendment would bar such claims. In

Board of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 121 S. Ct. 955, 148 L. Ed. 2d 866 (2001),

the Supreme Court held Congress’ attempted abrogation of Eleventh Amendment immunity is not valid for

employment discrimination claims brought by state employees under Title I. See also Elwell v. Oklahoma

ex rel. Bd. of Regents of Univ. of Oklahoma, 693 F.3d 1303, 1310 (10th Cir. 2012).

3 The Sixth Circuit has also held the Eleventh Amendment does not apply to Title II “due process-type

claims,” such as a claim brought by a partially deaf plaintiff for denial of meaningful participation in a child

custody proceeding to assert his parental rights. Popovich v. Cuyahoga Co. Court of Common Pleas, 276

F.3d 808 (6th Cir. 2002) see also Robinson v, Univ. of Akron School of Law, 307 F.3d 409, 413 (6th Cir.

2002) (holding that, in order to constitute a due process-type claim covered by Popovich, the plaintiff must

allege “he was excluded from participating in a proceeding guaranteed to him by the Due Process Clause

on the basis of his disability.”)

4

prohibited by the Eighth Amendment. United States v. Georgia, 546 U.S. 151, 126 S. Ct. 877, 163

L. Ed. 2d 650 (2006).

In evaluating whether abrogation is valid for particular Title II ADA claims, the Sixth

Circuit applies a three-part test derived from the Supreme Court’s holding in United States v.

Georgia, which requires a court to: “‘determine ... on a claim-by-claim basis, (1) which aspects

of the State's alleged conduct violated Title II; (2) to what extent such misconduct also violated

the Fourteenth Amendment; and (3) insofar as such misconduct violated Title II but did not violate

the Fourteenth Amendment, whether Congress's purported abrogation of sovereign immunity as

to that class of conduct is nevertheless valid.’” Mingus v. Butler, 591 F.3d 474, 482 (6th Cir. 2010)

(quoting Georgia, 546 U.S. at 159); Babcock, 812 F.3d at 534-35.

Applying the first step here, the State’s conduct that allegedly violated Title II arises out

of Plaintiff’s employment with TDOE.4 Under the second step, Plaintiff must address whether the

alleged misconduct also violates the Fourteenth Amendment. For example, Plaintiff may show the

alleged misconduct violates her fundamental right of access to the courts as in Tennessee v. Lane,

or that the alleged conduct independently violates the Fourteenth Amendment, as in United States

v. Georgia. Plaintiff has not attempted to make such a showing.

4 Although the Sixth Circuit has not addressed the issue, see Whitfield v. Tennessee, 639 F.3d 253, 258 (6th

Cir. 2011), a majority of circuit courts have held that employment discrimination claims may not be brought

under Title II. See Taylor v. City of Shreveport, 798 F.3d 276, 282 (5th Cir.2015); Reyazuddin v.

Montgomery County, Maryland, 789 F.3d 407, 421 (4th Cir.2015); Brumfield v. City of Chicago, 735 F.3d

619, 621 (7th Cir.2013); Mary Jo C. v. N.Y. State & Local Ret. Sys., 707 F.3d 144, 171, 171 n. 12 (2nd

Cir.2013); Elwell v. Oklahoma, ex rel. Board of Regents of the University of Oklahoma, supra; Zimmerman

v. Oregon Dept. of Justice, 170 F.3d 1169 (9th Cir.1999). Only the Eleventh Circuit holds otherwise.

Bledsoe v. Palm Beach County Soil and Water Conservation District, 133 F.3d 816 (11th Cir.1998).

Because the Court dismisses Plaintiff’s Title II claims on Eleventh Amendment grounds, it need not address

this issue.

5

Therefore, under the third step, Plaintiff must show Congress’ purported abrogation of

sovereign immunity as to employment discrimination claims brought by state employees is

nevertheless valid. In that regard, Plaintiff must explain why the Supreme Court’s decision in

Garrett, rejecting Congress’ attempted abrogation of immunity for state employees’ Title I

employment discrimination claims, would not apply to Title II employment discrimination claims.

Other federal courts have held the reasoning in Garrett applies to Title II as well:

Congress's § 5 enforcement power to require state employers to accommodate

disabled employees under Title II appears to be an issue of first impression in the

Eleventh Circuit. This court concludes that, because, with Title I, Congress did not

validly abrogate sovereign immunity with regard to state-employment

discrimination against the disabled, Congress did not do so with Title II either.

The Garrett Court pointed to the dearth of any legislative history of a pattern of

disability employment discrimination by the States that would have authorized

Congressional preventive or remedial action. Because the Supreme Court has

determined that, as to Title I, the historical record of state disability-employment

discrimination is insufficient to trigger Congress's § 5 enforcement power and

because Leverette provides no reason why this insufficiency should be any different

as to Title II, the court finds that, with Title II, Congress did not validly abrogate

sovereign immunity with regard to state-employment discrimination against the

disabled. Put another way, 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.

Leverette v. Alabama Revenue Dep't, 453 F. Supp. 2d 1340, 1345 (M.D. Ala. 2006); see also Lucas

v. State of Alabama Dep't of Pub. Health, 2016 WL 335547, at *4 (M.D. Ala. Jan. 7, 2016), report

and recommendation adopted, 2016 WL 344965 (M.D. Ala. Jan. 27, 2016) (“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.”); Clifton v. Georgia Merit Sys.,

478 F. Supp. 2d 1356, 1368 (N.D. Ga. 2007) (“The court finds that the Supreme Court's holding

in Garrett that ‘[t]he legislative record of the ADA ... simply fails to show that Congress did in

6

fact identify 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.”)

Plaintiff has not sought to distinguish the reasoning of these courts, nor has she otherwise sought

to distinguish the Supreme Court’s reasoning in Garrett. Persuaded by the reasoning of these

courts that Garrett extends to Title II claims, the Court concludes the Eleventh Amendment bars

Plaintiff’s claims for money damages under Title II of the ADA.

Defendant also argues Plaintiff is barred from recovering prospective injunctive relief

under the ADA because the Ex Parte Young exception to Eleventh Amendment immunity does

not apply to claims against the State. Plaintiff has not addressed this argument. Under Ex Parte

Young, the Eleventh Amendment “‘does not preclude relief against state officials in their official

capacity for prospective injunctive or declaratory relief.’” Proctor v. Board of Medicine, 718 Fed.

Appx. 325, 328 (6th Cir. 2017) (quoting Thiokol Corp. v Dep’t of Treasury, 987 F.2d 376, 381 (6th

Cir. 1993) (emphasis in original)). Claims brought against the state itself, rather than a state

official, however, do not fall within the Ex Parte Young exception. Id. Thus, Plaintiff’s ADA

claims for declaratory and injunctive relief are barred by the Eleventh Amendment.

C. Punitive Damages

Defendant argues Plaintiff’s request for punitive damages must be dismissed based on 42

U.S.C. § 1981a(b)(1).5 Plaintiff does not respond to this argument, nor does her Complaint cite

any authority for her request to recover punitive damages on her claims.

5 Section 1981a(b)(1) provides:

(b) Compensatory and punitive damages

(1) Determination of punitive damages

7

Section 1981a(b)(5) provides that a party may recover punitive damages as to causes of

action covered by the provision unless the defendant is “a government, government agency or

political subdivision.” Federal courts have applied this provision to bar punitive damages against

governmental entities for claims brought under Title VII, the ADA, and the Rehabilitation Act.

See Poe v. Memphis Light, Gas & Water Div., 201 F.3d 441 (6th Cir. 1999) (applied to Title VII

claims); Liner v. Hosp. Serv. Dist. No. 1 of Jefferson Par., 230 Fed. Appx. 361, 365 (5th Cir. 2007)

(applied to ADA claims); Palmieri v. City of Hartford, 947 F. Supp. 2d 187, 207 (D. Conn. 2013)

(applied to ADA and Rehabilitation Act claims). As discussed above, Defendant is a department

of the State of Tennessee, and therefore, qualifies as “a government, government agency or

political subdivision.” Tenn. Code Ann. § 4-3-101; Smith v. Tennessee Dep't of Health, 2012 WL

5931718, at *3 (M.D. Tenn. Nov. 27, 2012), report and recommendation adopted, 2012 WL

6057125 (M.D. Tenn. Dec. 6, 2012). Plaintiff has failed to cite authority to the contrary.

Accordingly, Plaintiff’s claim for punitive damages is dismissed.

D. Rehabilitation Act Failure-to-Accommodate Claim

Defendant argues Plaintiff has not sufficiently alleged a claim for failure to accommodate

under the Rehabilitation Act. Analysis of claims brought under the Rehabilitation Act mirrors that

used for ADA claims. See, e.g., Lee v. City of Columbus, Ohio, 636 F.3d 245, 249–50 (6th Cir.

A complaining party may recover punitive damages under this section against

a respondent (other than a government, government agency or political

subdivision) if the complaining party demonstrates that the respondent

engaged in a discriminatory practice or discriminatory practices with malice

or with reckless indifference to the federally protected rights of an aggrieved

individual.

8

2011); Thompson v. Williamson Cty., Tennessee, 219 F.3d 555, 557 n. 3 (6th Cir. 2000). In

evaluating failure-to-accommodate claims under the ADA, the Sixth Circuit uses a multi-part test:

(1) The plaintiff bears the burden of establishing that he or she is disabled. (2) The plaintiff

bears the burden of establishing that he or she is ‘otherwise qualified” for the position

despite his or her disability: (a) without accommodation from the employer; (b) with an

alleged ‘essential’ job requirement eliminated; or (c) with a proposed

reasonable accommodation. (3) The employer will bear the burden of proving that a

challenged job criterion is essential, and therefore a business necessity, or that a

proposed accommodation will impose an undue hardship upon the employer.

Tchankpa v. Ascena Retail Grp., Inc., 951 F.3d 805, 811 (6th Cir. 2020) (quoting Kleiber v. Honda

of Am. Mfg., Inc., 485 F.3d 862, 868 (6th Cir. 2007)). The plaintiff must propose a

reasonable accommodation to succeed. Id., at 812.

Defendant argues Plaintiff has failed to allege she requested a reasonable accommodation

that Defendant failed to provide. The Court disagrees. Plaintiff’s 30-page Complaint alleges, in

the introductory paragraphs, that: “Dr. Ward repeatedly requested reasonable accommodations

including requesting the assignment of a qualified translator and face-to-face conversations.” (Doc.

No. 1, at 2). Later in the Complaint, Plaintiff again alleges she proposed face-to-face meetings but

Defendant isolated her by limiting those meetings. (Id. ¶¶ 111-12). Plaintiff also alleges she

requested timely technology support for communication devices, as well as qualified interpreters,

neither of which were provided by Defendant. (Id. ¶¶ 103-10).

Apparently recognizing these allegations, Defendant argues more is required; Plaintiff

must go on to specify: “why discussing issues face-to-face rather than through other means was

necessary and objectively reasonable or how frequently face-to-face meeting needed to occur.”

(Doc. No. 8, at 6). Defendant has not cited any authority requiring this level of specificity to

sufficiently allege a failure-to-accommodate claim. See Twombly, 550 U.S. at 570; Fed. R. Civ. P.

8 (a)(2) (requiring only “a short and plain statement of the claim showing that the pleader is entitled

9

to relief.”) Thus, Defendant’s request to dismiss Plaintiff’s failure-to-accommodate claim is

denied.

E. Rehabilitation Act Disability Discrimination Claim

Defendant also argues Plaintiff’s claims for disability discrimination and a discriminatory

hostile work environment under the Rehabilitation Act must be dismissed because Plaintiff has

failed to allege her disability was the “but for” reason for the discrimination. The Rehabilitation

Act provides that “[n]o otherwise qualified individual with a disability in the United States . . .

shall, solely by reason of her or his disability, . . . be subjected to discrimination under any program

or activity receiving Federal financial assistance . . .” 29 U.S.C. § 794(a) (emphasis added). Thus,

in order to recover for disability-based discrimination under the Act, a plaintiff must establish: (1)

she is an individual with a disability; (2) she is otherwise qualified to perform the job requirements,

with or without reasonable accommodation; and (3) she [suffered an adverse employment action]

solely by reason of her disability. Lee v. City of Columbus, Ohio, 636 F.3d at 249–50; Mitchell v.

United States Postal Serv., 738 Fed. Appx. 838, 843 (6th Cir. 2018).

Defendant bases its argument on Paragraphs 96 and 153 of the Complaint, where Plaintiff

“acknowledges that Defendant disciplined her for violating a policy and later terminated her, in

part, because of this policy violation.” (Doc. No. 8, at 7).6 Paragraph 96 states, “On February 9,

2018, Dep. Comm. Airhart issued Dr. Ward a written warning for purportedly violating the State

Special Schools Housing Policy.” (Doc. No. 1 ¶ 96). Paragraph 153 states, “TDOE terminated Dr.

6 Defendant does not base its argument on the existence of other alleged reasons for Defendant’s actions,

i.e., gender, retaliation. See, e.g., Barnum v. Ohio State Univ. Med. Ctr., 2013 WL 5969724, at *10 (S.D.

Ohio Nov. 8, 2013) (denying motion to dismiss Rehabilitation Act claim because plaintiff alleged “multiple

reasons” for defendant’s actions, explaining that plaintiff may allege alternative theories of recovery under

Rule 8(d)). Therefore, the Court will not address the issue.

10

Ward for alleged performance issues and insubordination.” (Id. ¶ 153). The Court does not read

these paragraphs as admissions by Plaintiff that Defendant’s stated reasons for its actions were the

true reasons. Plaintiff uses the words “purportedly” and “alleged” in describing Defendant’s stated

reasons for its actions, and thus, suggests these stated reasons were pretext for its true reasons. See

Mitchell v. United States Postal Serv., 738 Fed. Appx. at 847 (“A plaintiff may show pretext by

demonstrating: (1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did

not actually motivate [the adverse employment action], or (3) that they were insufficient to

motivate [the adverse employment action].” ) Thus, the Court is not persuaded that Paragraphs 96

and 153 require dismissal of Plaintiff’s claims for disability discrimination and a discriminatory

hostile work environment under the Rehabilitation Act.

F. Title VII Gender Discrimination

Relying on a case discussing the proof required to withstand summary judgment, White v.

Columbus Metro. Hous. Auth., 429 F.3d 232, 238 (6th Cir 2005), Defendant argues Plaintiff has

failed to sufficiently allege direct evidence of gender discrimination or circumstantial evidence of

gender discrimination. Defendant argues Plaintiff fails to allege direct evidence of discrimination

because the comments allegedly made to her are “isolated and ambiguous.” (Doc. No. 8, at 7). As

for indirect evidence of gender discrimination, Defendant argues Plaintiff has failed to allege all

the elements of a prima facie case; specifically, that she was replaced by a person outside the

protected class, or similarly situated non-protected employees were treated more favorably.

Defendant’s arguments confuse summary judgment standards with those governing

sufficiency of pleading. Plaintiff is not required to prove gender-based statements establish direct

evidence of discrimination at the motion-to-dismiss stage. Nor is she required to satisfy every

element of a prima facie case through the allegations of the complaint. See Keys v. Humana, Inc.,

11

684 F.3d 605, 609 (6" Cir. 2012) (explaining that elements of McDonnel Douglas framework need

not be pled in the complaint); Serrano v. Cintas Corp., 699 F.3d 884, 897 (6" Cir 2012); James v.

Hampton, 592 Fed. Appx. 449, 460 (6th Cir. 2015). She is simply required to sufficiently allege a

claim that is plausible on its face. Twombly, 550 U.S. at 570; Fed. R. Civ. P. 8(a)(2).

Plaintiff alleges Defendant hired a male consultant, over her objections, who had a

reputation for being sexist. (Doc. No. 1 J] 86-89, 193-200). Plaintiff further alleges the consultant,

whose behavior was condoned and ratified by Defendant, told Plaintiff she came off “harsh,”

“unyielding,” and needed to be “warmer,” “approachable,” and more “soft” and “fuzzy.” (d.)

According to Plaintiff, the consultant criticized her and blatantly refused to provide constructive

guidance, telling her, “You can figure it out. You are an intelligent woman.” (/d.) Relying, in part,

on the consultant’s criticism of her job performance, Plaintiff alleges, Defendant made the decision

to terminate her employment. (/d.) These factual allegations sufficiently state a claim of gender

discrimination to satisfy the requirements of Rule 8.

IV. Conclusion

For the reasons set forth above, Defendant’s Motion for Partial Dismissal is granted in part,

and denied in part.

It is so ORDERED. VE

ble x Cobdfp—

UNITED STATES DISTRICT JUDGE

12