Parker v. University of Alabama Police Department

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

KIMBER LEIGH PARKER, }

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Plaintiff, }

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v. } Case No.: 7:23-cv-01656-RDP

}

UNIVERSITY OF ALABAMA POLICE }

DEPARTMENT, et al., }

}

Defendants. }

MEMORANDUM OPINION

This matter is before the court on the Motion to Dismiss Plaintiff’s Second Amended

Complaint filed by Defendants the Board of Trustees of The University of Alabama (“the Board”),

University of Alabama Police Department (“UAPD”), Melissa Bailey (“Bailey”), and Calvin

Kimbrow (“Kimbrow”) (together, “Defendants”). (Doc. # 20). The Motion has been fully briefed

(Docs. # 20, 26, 27) and is ripe for decision. After careful review, and for the reasons discussed

below, Defendants’ Motion (Doc. # 20) is due to be granted in part and denied in part.

I. Background

Since birth, Plaintiff Kimber Leigh Parker (“Plaintiff”) has been diagnosed with Cerebral

Palsy, a disability which affects “her coordination, muscle control, movement, balance, pelvic

pain, need to use restroom facilities frequently, and her ability to walk/stand/sit for medium-to-

long durations of time.” (Doc. # 19 ¶¶ 37-38). Plaintiff also wears special shoes and uses canes,

walkers, and sometimes wheelchairs due to her medical condition. (Id. ¶ 39). From October 28,

2013 until December 6, 2021, Plaintiff was a police communications operator, also known as a

dispatcher, with UAPD. (Id. ¶¶ 40, 46). Her supervisors at work were Defendants Bailey and

Kimbrow. (Id. ¶ 52).

In her Second Amended Complaint, Plaintiff contends that Defendants repeatedly

discriminated against her during her employment with UAPD by denying her reasonable

accommodations, insulting her, and ignoring her requests for access to the restroom. (Id. ¶¶ 53-

93). Specifically, she alleges that, at various times during her employment, she was denied

accommodations for her disability, including use of a telephone headset, parking spaces near her

work location, and the ability to use the restroom or move from her desk when desired. (Id. ¶¶ 63-

68, 75). Plaintiff also contends that her coworkers made fun of her disability on numerous

occasions by using slurs and making discriminatory comments (id. ¶¶ 54, 73, 82-87) and that she

was disciplined for tardiness allegedly caused by her disability. (Id. ¶ 65). Plaintiff alleges that

although she complained of this disability discrimination from April 2021 through November 2021

(id. ¶ 159), Defendants never investigated her complaints and the harassment directed at her

continued. (Id. ¶¶ 162-64). Plaintiff further alleges that after she complained about the

discrimination she suffered, Defendants terminated her employment in December 2021. (Id. ¶¶ 60,

101-03, 238-40, 293). Plaintiff also contends that following her termination, Defendants have

prevented her from obtaining new employment. (Id. ¶ 109).

II. Standard of Review

A. Rule 12(b)(1) Standard

When “a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court

should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.”

Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citing Hitt v. City of Pasadena, 561

F.2d 606, 608 (5th Cir. 1977)); Harris v. Bd. of Trs. Univ. of Ala., 846 F. Supp. 2d 1223, 1230

(N.D. Ala. 2012). A motion under Federal Rule of Civil Procedure 12(b)(1) allows a party to assert

a defense of lack of subject-matter jurisdiction. A Rule 12(b)(1) motion to dismiss should be

granted “only if it appears certain that the plaintiff cannot prove any set of facts in support of his

claim that would entitle plaintiff to relief.” Harris, 846 F. Supp. 2d at 1232 (quoting Ramming,

281 F.3d at 161). The burden of proof on a motion to dismiss for lack of subject-matter jurisdiction

is on the party asserting jurisdiction (here, that is Plaintiff). Id. “A federal district court is under a

mandatory duty to dismiss a suit over which it has no jurisdiction.” Se. Bank, N.A. v. Gold Coast

Graphics Grp. Partners, 149 F.R.D. 681, 683 (S.D. Fla. 1993) (citing Stanley v. Central Intel.

Agency, 639 F.2d 1146, 1157 (5th Cir. 1991); Marshall v. Gibson’s Prods., Inc. of Plano, 584 F.2d

668, 671-72 (5th Cir. 1978)).

A Rule 12(b)(1) motion can present either a facial or a factual attack. Willett v. U.S., 24 F.

Supp. 3d 1167, 1173 (M.D. Ala. 2014) (citing McElmurray v. Consol. Govt. of Augusta-Richmond

Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007)). “Facial attacks on the complaint ‘require[] the court

merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject-matter

jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion.’”

Garcia v. Copenhaver, Bell & Assocs., M.D.’s P.A., 104 F.3d 1256, 1261 (11th Cir. 1997) (quoting

Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990)) (other citations omitted). On the

other hand, “factual attacks” challenge “the existence of subject-matter jurisdiction in fact,

irrespective of the pleading, and matters outside the pleadings, such as testimony and affidavits,

are considered.” Id. In other words, when a party raises a factual attack to subject-matter

jurisdiction, the court is not obligated to take the allegations in the complaint as true, but may

consider extrinsic evidence such as affidavits. Odyssey Marine Expl., Inc. v. Unidentified

Shipwrecked Vessel, 657 F.3d 1159, 1169 (11th Cir. 2011) (citations omitted).

B. Rule 12(b)(6) Standard

The Federal Rules of Civil Procedure require that a complaint provide “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

However, the complaint must include enough facts “to raise a right to relief above the speculative

level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Pleadings that contain nothing more

than “a formulaic recitation of the elements of a cause of action” do not meet Rule 8 standards,

nor do pleadings suffice that are based merely upon “labels and conclusions” or “naked

assertion[s]” without supporting factual allegations. Id. at 555, 557. In deciding a Rule 12(b)(6)

motion to dismiss, courts view the allegations in the complaint in the light most favorable to the

non-moving party. Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007).

To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible

on its face.” Twombly, 550 U.S. at 570. “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, 678 (2009). Although “[t]he

plausibility standard is not akin to a ‘probability requirement,’” the complaint must demonstrate

“more than a sheer possibility that a defendant has acted unlawfully.” Id. A plausible claim for

relief requires “enough fact[s] to raise a reasonable expectation that discovery will reveal

evidence” to support the claim. Twombly, 550 U.S. at 556.

In considering a motion to dismiss, a court should “1) eliminate any allegations in the

complaint that are merely legal conclusions; and 2) where there are well-pleaded factual

allegations, ‘assume their veracity and then determine whether they plausibly give rise to an

entitlement to relief.’” Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 413 F. App’x 136, 138

(11th Cir. 2011) (quoting Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)).

That task is context specific and, to survive the motion, the allegations must permit the court based

on its “judicial experience and common sense . . . to infer more than the mere possibility of

misconduct.” Iqbal, 556 U.S. at 679. If the court determines that well-pleaded facts, accepted as

true, do not state a claim that is plausible, the claims are due to be dismissed. Twombly, 550 U.S.

at 570.

Complaints that tender “‘naked assertion[s]’ devoid of ‘further factual enhancement’” will

not survive a motion to dismiss. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557)

(alteration in original). Stated differently, the complaint must allege enough facts “to raise a

reasonable expectation that discovery will reveal evidence” supporting a claim. Twombly, 550 U.S.

at 556.

III. Discussion

Plaintiff’s Second Amended Complaint asserts eight causes of action: Count I –

Discrimination and Harassment under Section 504 of the Rehabilitation Act (against all

Defendants); Count II – Intimidation, Interference, and Retaliatory Termination under Section 504

of the Rehabilitation Act (against all Defendants); Count III – Disability Discrimination and

Failure to Accommodate under Title I of the Americans with Disabilities Act (“ADA”) (against

the Board and UAPD); Count IV – Disability Discrimination/Termination under Title I of the ADA

(against the Board and UAPD); Count V – Interference under Titles I and V of the ADA (against

the Board and UAPD); Count VI – Retaliation under Titles I and V of the ADA (against all

Defendants); Count VII – Discriminatory Denial of Access and Failure to Accommodate under

Title II of the ADA (against all Defendants); and Count VIII – Retaliation, Intimidation, and

Interference under Titles II and V of the ADA (against all Defendants). Plaintiff seeks both

injunctive relief and declaratory relief, as well as back pay, reinstatement, compensatory damages,

and punitive damages. (Doc. # 19 at 94-95).

In her Response in Opposition to the Motion to Dismiss (Doc. # 26), Plaintiff concedes

that UAPD is not a legal entity and thus must be dismissed as a party. (Id. at 2). Therefore, only

the claims against the Board and the individuals (Bailey and Kimbrow) are in contest.

Defendants have moved to dismiss all claims asserted against them in the action, except

those asserted against the Board under the Rehabilitation Act in Counts I and II and those against

Bailey and Kimbrow in Counts III through VIII. Below, the court addresses the claims Defendants

seek to dismiss.

A. Plaintiff’s Claims Under the Rehabilitation Act Against the Individual

Defendants (Counts I and II)

Defendants have only moved to dismiss Plaintiff’s claims under the Rehabilitation Act

(Counts I and II) against Defendants Bailey and Kimbrow. Defendants argue that the claims should

be dismissed because they are redundant of those against the Board since the Board is already a

defendant to the Rehabilitation Act claims. (Doc. # 20 at 13-14). Plaintiff has not responded to

these arguments. (See Doc. # 26).

The court agrees that these claims against the individual defendants should be dismissed.

“The Rehabilitation Act prohibits recipients of federal financial assistance from discriminating

against individuals with disabilities.” Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 507 F.3d

1306, 1307 (11th Cir. 2007). Therefore, the Rehabilitation Act does not provide for suit against

individuals. See Pritchard v. S. Co. Servs., 102 F.3d 1118, 1119 n.7 (11th Cir. 1996) (holding that

liability under the Rehabilitation Act lies against an employer, not the individual officers of an

employer); Garcia v. SUNY Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001)

(“[N]either Title II of the ADA nor § 504 of the Rehabilitation Act provides for individual capacity

suits against state officials.”) (collecting cases). Further, “[o]fficial capacity suits are suits against

state agencies, not against the people through whom agencies act.” Hobbs v. Roberts, 999 F.2d

1526, 1530 (11th Cir. 1993). “[O]fficial capacity suits represent ‘only another way of pleading an

action against an entity of which an officer is an agent,’ and a victory against a named individual

in an official capacity suit is ‘a victory against the entity that employs him.’” Id. (quoting Kentucky

v. Graham, 473 U.S. 159, 167-68 (1985)); see also McDowell v. Ala. Dep’t of Pub. Health, 2022

WL 988377, at *3 (M.D. Ala. Mar. 31, 2022) (dismissing plaintiff’s claims under the

Rehabilitation Act against individual defendants since plaintiff had already sued the relevant state

agency).

Where a plaintiff has named a state agency in the same suit, any claim against an officer or

that agency in his or her official capacity is “duplicative” of the claim against the agency and is

“due to be dismissed.” Ginwright v. Dep’t of Revenue for Ala., 2013 WL 1187943, at *4 (M.D.

Ala. Mar. 21, 2013). Thus, Plaintiff’s claims under the Rehabilitation Act (Counts I and II) against

Bailey and Kimbrow in their official capacities are due to be dismissed since Plaintiff has also

brought suit against the Board.

B. Plaintiff’s Claims Under the ADA Against the Board (Counts III-VII)

Defendants move to dismiss Plaintiff’s ADA claims against the Board under Rule 12(b)(1)

because they contend that the Board is protected by sovereign immunity, and therefore the court

lacks subject-matter jurisdiction over these claims. (See Doc. # 20 at 4) (citing Thomas v. U.S.

Postal Serv., 364 F. App’x 600, 601 (11th Cir. 2010) (“[A] dismissal on sovereign immunity

grounds should be pursuant to Rule 12(b)(1) because no subject-matter jurisdiction exists.”)).

The Eleventh Amendment provides:

The Judicial power of the United States shall not be construed to extend to any suit

in law or equity, commenced or prosecuted against one of the United States by

Citizens of another State, by Citizens or Subjects of any Foreign State.

U.S. Const. amend. XI. “While the text of the Eleventh Amendment ‘applies only to suits against

a State by citizens of another State,’ the Supreme Court has construed the Eleventh Amendment

to apply to suits initiated by citizens against their own States.” Dupree v. Owens, 92 F.4th 999,

1005 (11th Cir. 2024) (quoting Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001)).

The Eleventh Amendment applies in the instant case because state universities and the boards that

govern them are state agencies for purposes of Eleventh Amendment immunity. See Page v. Hicks,

773 F. App’x 514, 518 (11th Cir. 2019) (“[S]tate universities, such as UAB are ‘arms of the state’

and thus are entitled to Eleventh Amendment immunity.”); Pouyeh v. UAB Dep’t of

Ophthalmology, 625 F. App’x 495, 498 (11th Cir. 2015) (“The Board [of Trustees of the University

of Alabama] is a state agency.”) (citing Harden v. Adams, 760 F.2d 1158, 1163-64 (11th Cir. 1985)

(holding that Alabama’s state university boards are state agencies for purposes of the Eleventh

Amendment).

“The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not

be sued by private individuals in federal court.” Garrett, 531 U.S. at 363. However, the Eleventh

Amendment does not provide an absolute bar for lawsuits brought against a state or its agencies.

The Supreme Court has outlined three situations where there is a “surrender” of Eleventh

Amendment sovereign immunity:

(1) when a state waives its Eleventh Amendment sovereign immunity and consents

to suit in federal court; (2) when Congress, acting pursuant to § 5 of the Fourteenth

Amendment, abrogates a state’s Eleventh Amendment sovereign immunity by

expressing an unequivocal intent to do so; and (3) when a state official is sued for

prospective injunctive relief to end a continuing violation of federal law.

Harbert Intern., Inc. v. James, 157 F.3d 1271, 1278 (11th Cir. 1998) (citations omitted). While

Plaintiff argues in her Second Amended Complaint that Defendants have waived their immunity

by accepting federal funds, this argument misses the mark. Both the Supreme Court and the

Eleventh Circuit have held that accepting federal funding does not constitute a waiver of Eleventh

Amendment immunity for ADA claims. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246-47

(1985) (“[T]he mere receipt of federal funds cannot establish that a State has consented to suit in

federal court.”); Rizo v. Ala. Dep’t of Hum. Res., 228 F. App’x 832, 835 (11th Cir. 2007). Because

the Board is not a state official, the third situation does not apply either. (However, the court

discusses it below in its analysis regarding Defendants Bailey and Kimbrow). Therefore, related

to the claims brought against the Board, the only dispute is whether the second situation applies.

See James, 157 F.3d at 1278 (“(2) when Congress, acting pursuant to § 5 of the Fourteenth

Amendment, abrogates a state’s Eleventh Amendment sovereign immunity by expressing an

unequivocal intent to do so . . . .”).

The ADA specifically provides: “A state shall not be immune under the eleventh

amendment to the Constitution of the United States from an action in Federal or State court of

competent jurisdiction for a violation of this chapter.” 42 U.S.C. § 12202. Although Congress has

expressed an intent to abrogate Eleventh Amendment immunity, it also must act pursuant to a valid

grant of congressional authority, which is found in Section 5 of the Fourteenth Amendment. Bd.

of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001). “Under Section 5, Congress may (1)

create a private right of action against the State for actual constitutional violations or (2) respond

to ‘a pattern of discrimination by the States’ by passing legislation to remedy and deter Fourteenth

Amendment violations.” Dupree, 92 F.4th at 1006 (quoting Garrett, 531 U.S. at 365). In other

words, “Congress may enact so-called prophylactic legislation that proscribes facially

constitutional conduct, in order to prevent and deter unconstitutional conduct.” Nev. Dep’t of Hum.

Res. v. Hibbs, 538 U.S. 721, 721-22 (2003).

However, Congress’s ability to abrogate state sovereign immunity “is cabined, . . . by a

necessity of balancing ‘congruence and proportionality between the injury to be prevented or

remedied and the means adopted to that end.’” Dupree, 92 F.4th at 1006 (quoting City of Boerne

v. Flores, 521 U.S. 507, 520 (1997)). “Whether a congressional Act passed under § 5 can impose

monetary liability upon States requires an assessment of both the ‘evil or wrong that Congress

intended to remedy,’ and the means Congress adopted to address that evil.” Coleman v. Ct. of

Appeals of Md., 566 U.S. 30, 36 (2012) (quoting City of Boerne, 521 U.S. at 520) (internal citation

and quotations omitted).

Regarding the ADA, courts employ a three-step inquiry to determine whether Congress’s

response is congruent and proportional: “(1) identify which right Congress sought to enforce when

it enacted the ADA; (2) examine whether a demonstrated record of unconstitutional discrimination

existed to support Congress’s decision that preventative legislation was warranted; and (3)

determine whether the ADA provision at issue is an appropriate response to the history of

mistreatment.” Dupree, 92 F.4th at 1006 (citing Nat’l Ass’n of the Deaf v. Fla., 980 F.3d 763, 771

(11th Cir. 2020)). This is the lens through which the court must assess whether the Board is

immune from claims arising under Titles I, II, and V of the ADA.

i. Title I of the ADA (Counts III-VI)

Title I of the ADA prohibits certain employers, including state employers, from

“discriminat[ing] against a qualified individual with a disability because of the disability of such

individual 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). This section of the ADA requires employers to “mak[e]

reasonable accommodations to the known physical or mental limitations of an otherwise qualified

individual with a disability who is an applicant or an employee, unless [the employer] can

demonstrate that the accommodation would impose an undue hardship on the operation of the

[employer’s] business.” § 12112(b)(5)(A).

In Board of Trustees of the University of Alabama v. Garrett, the Supreme Court held that

the Eleventh Amendment bars private individuals from filing suit against states in federal court

under Title I of the ADA. 531 U.S. 356, 374 (2001). The Court found that Title I of the ADA

exceeded Congress’s Section 5 authority to proscribe constitutional conduct to remedy and deter

Fourteenth Amendment violations for two reasons: “(1) Title I’s broad sweep was not sufficiently

targeted to remedy or prevent unconstitutional discrimination in public employment; and (2)

Congress failed to identify a pattern of irrational state-employment discrimination against the

disabled.” Leverette v. Ala. Revenue Dep’t, 453 F. Supp. 2d 1340 (M.D. Ala. 2006) (citing Garrett,

531 U.S. at 372-74). Although Congress found a general pattern of discrimination aimed at the

disabled, “the great majority of these incidents do not deal with the activities of the States.”

Garrett, 531 U.S. at 369 (emphasis added). Because the Court found that there was no pattern of

unconstitutional employment discrimination by the states, it held that Title I was not a valid

exercise of Congress’s Section 5 power. For this reason, Title I did not validly abrogate the Board’s

Eleventh Amendment immunity.

Therefore, it is clear that the Board is immune from Plaintiff’s claims under Title I of the

ADA (Counts III-VI). Thus, these claims against the Board are due to be dismissed.

ii. Title II of the ADA (Counts VII and VIII)

Title II of the ADA provides that “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.” 42

U.S.C. § 12132. “Circuits are split on whether Title II applies to disability discrimination in public

employment, with some holding that it does not apply in this context, leaving Title I as the

exclusive ADA remedy for claims of disability discrimination in both public and private

employment.” Culverhouse v. S. Union Cmty. Coll., 2021 WL 2417154, at *5 (M.D. Ala. June 14,

2021) (citing Brumfield v. City of Chicago, 735 F.3d 619, 622 (7th Cir. 2013); Elwell v. Okla. Ex

rel. Bd. of Regents of the Univ. of Okla., 693 F.3d 1303 (10th Cir. 2012); Zimmerman v. Or. Dep’t

of Just., 170 F.3d 1169 (9th Cir. 1999)). However, the Eleventh Circuit has held that Title II

encompasses employment discrimination by public entities. Bledsoe v. Palm Beach Cnty. Soil &

Water Conservation Dist., 133 F.3d 816, 820 (11th Cir. 1998).

In Garrett, the Supreme Court left open the question of whether Congress abrogated

Eleventh Amendment immunity under Title II claims. “[I]t chose not to address whether

individuals ‘may sue their state employers for damages under Title II of the ADA.’” Leverette,

453 F. Supp. 2d at 1344 (M.D. Ala. 2006) (citing Garrett, 531 U.S. at 360 n.1). However, the

Court later held in United States v. Georgia, 546 U.S. 151 (2006) that “Title II validly abrogates

sovereign immunity when it proscribes conduct that actually violates the Fourteenth Amendment.”

Leverette, 453 F. Supp. 2d at 1344. But, our circuit “it left to the lower courts to determine, on a

case-by-case basis, the much thornier question of whether conduct that violates Title II but does

not violate the Fourteenth Amendment is nevertheless valid under Congress’s § 5 enforcement

power.” Id. (citing Georgia, 546 U.S. at 882).

In her Response in Opposition to the Motion to Dismiss (Doc. # 26), Plaintiff relies on the

Supreme Court’s holding in Tennessee v. Lane, 541 U.S. 509 (2004) and argues that Title II

abrogates sovereign immunity “for the purpose of effectuating Congress’s intent of combating

discrimination in the administration of public programs and services.” (See Doc. # 26 at 5 (citing

Lane, 541 U.S. at 522-23)). However, Lane is inapposite here. In Lane, the Supreme Court took

an as-applied approach to Title II claims – concluding that abrogation of Eleventh Amendment

immunity under Title II is a context-specific question. 541 U.S. at 516-17. Specifically, the Lane

Court held that Title II claims regarding access to the courts for the disabled were not barred by

the Eleventh Amendment. Id. Therefore, Lane did not involve employment discrimination and its

holding was “narrowly crafted and limited to cases implicating the accessibility of judicial

services.” Clifton v. Ga. Merit Sys., 478 F. Supp. 2d 1356, 1367 (N.D. Ga. 2007). As Defendants

correctly state in their reply brief, “[t]he Lane Court specifically addressed Title II’s application to

access to the court system, not any other context.” (Doc. # 27 at 4 (citing Lane, 541 U.S. at 530-

31)); see also Dupree, 92 F.4th at 1007 (“[T]he patterns addressed in Lane do not relate to

employment discrimination.”). Based on the Court’s as-applied analysis in Lane, abrogation of

Eleventh Amendment immunity under Title II is a context-specific question.

Although neither the Supreme Court nor the Eleventh Circuit have ruled on whether

employment discrimination claims under Title II are barred by the Eleventh Amendment, many

district courts in the Eleventh Circuit have. For example, the district court in Leverette v. Alabama

Revenue Department held 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.” 453 F. Supp. 2d at 1345. In support of its holding, the court explained

that “it would be illogical to find that history of state discrimination against the disabled in

employment is insufficient to permit Congress to enact Title I, but that same history is somehow

sufficient to allow Congress to fashion Title II.” Id. Other district courts have adopted this same

reasoning. See, e.g., Clifton v. Ga. Merit Sys., 478 F. Supp. 2d 1356 (N.D. Ga. 2007) (“Congress

did not validly abrogate sovereign immunity with regard to state employment discrimination

actions under Title II.”); Williamson v. Ga. Dep’t of Hum. Res. & Ga. Reg’l Hosp., 150 F. Supp.

2d 1375, 1381 (S.D. Ga. 2001) (“Because Congress failed to adequately identify a pattern of

irrational State conduct when it enacted Title II, it improperly abrogated the States’ Eleventh

Amendment immunity.”). The court agrees with the reasoning in Clifton: “In sum, a plaintiff

should not be permitted to circumvent the holding of Garrett immunizing states from employment

discrimination claims brought pursuant to Title I of the ADA by commencing suit under Title II,

a subchapter which lacks any of the procedural protections afforded employers under Title I.” 478

F. Supp. 2d at 1368.

Based on these cases, the court concludes that the Board is also immune from Plaintiff’s

claims under Title II of the ADA (Counts VII and VIII).

iii. Title V of the ADA (Counts V, VI, and VIII)

“A retaliation claim under Title V is predicated on an individual suffering a harm [after]

asserting rights under a separate ADA provision.” Dupree, 92 F.4th at 1007. Here, Plaintiff brings

three different claims involving Title V. In her claims asserted in Counts V, VI, and VIII. Under

Counts V and VI, the separate ADA provision coupled with Title V is Title I, and with respect to

her claim asserted in Count VIII, the separate ADA provision is Title II.

Plaintiff’s claims under Title I and Title V (Counts V and VI) can be quickly disposed of.

In Dupree v. Owens, the Eleventh Circuit held that sovereign immunity applies to Title V claims

when brought in conjunction with Title I claims. 92 F.4th at 999. In support of its holding, the

Eleventh Circuit found that there was no evidence of a pattern of retaliation or disability

discrimination by the states. Id. Because there was no evidence of such pattern, the court concluded

that “Title V cannot serve as a congruent and proportional remedy when paired with a Title I

claim.” Id. at 1007. The Eleventh Circuit relied on the Supreme Court’s ruling in Garrett, which

found that sovereign immunity was not abrogated under Title I. See id. (“Garrett demonstrated

that Title I was not a valid exercise of Congress’ Section 5 power because of the lack of evidence

regarding a pattern of unconstitutional employment discrimination by the States.”) (citing Garrett,

531 U.S. at 374). As the Eleventh Circuit explained, “when the underlying provision – here, Title

I – does not allow a plaintiff to assert a claim against the State, it logically follows that a Title V

claim that is based on the exercise of a right arising only from Title I cannot be levied against the

State.” Id. Because Dupree clearly states that sovereign immunity is not abrogated when Title V

claims are paired with Title I claims, Plaintiff’s Counts V and VII against the Board are due to be

dismissed.

The claim asserted in Count VIII is more nuanced because it involves a Title II and Title

V claim, which the Eleventh Circuit did not address in Dupree. And, as stated above, neither the

Supreme Court nor the Eleventh Circuit have spoken on the applicability of Eleventh Amendment

immunity to employment discrimination claims under Title II. Therefore, this appears to be a

question of first impression. Based on the analyses in Garrett, Dupree, and the district court cases

addressing Title II employment discrimination claims, the court concludes that Plaintiff’s claim

arising under Titles II and V (Count VIII) should also be dismissed because it is barred by the

Eleventh Amendment.

Again, in Dupree, the Eleventh Circuit concluded that because sovereign immunity was

not abrogated under Title I (pursuant to the Supreme Court’s holding in Garrett), then it follows

that sovereign immunity was also not abrogated under a Title V claim which relied on a Title I

claim. 92 F.4th at 1007. Consistent with this reasoning, because the court has concluded that

sovereign immunity is not abrogated under a Title II claim, then the court now concludes that

sovereign immunity is also not abrogated under a Title V claim that relies on a Title II claim.

Therefore, Count VIII is due to be dismissed.

iv. Neither Money Damages nor Injunctive Relief are Recoverable Against

the Board

To be clear, the Board is immune from both monetary damages and injunctive relief under

Titles I, II, and V of the ADA. In her Response in Opposition to the Motion to Dismiss (Doc. #

26), Plaintiff contends, “[w]hile monetary damages may not be recoverable, the Courts have been

clear that injunctive relief is.” (Id. at 3). However, this characterization misses the mark. In Garrett,

the Supreme Court specifically answered the question of whether states could be sued in federal

court for money damages under the ADA. The Court did not consider injunctive relief because

respondents were only seeking money damages under Title I. Garrett, 531 U.S. at 356. Plaintiff

appears to rely on a footnote in Garrett in asserting that injunctive relief may be sought against

the Board. The footnote states “Title I of the ADA still prescribes standards applicable to the States.

Those standards can be enforced by the United States in actions for money damages, as well as by

private individuals in actions for injunctive relief under Ex Parte Young.” 531 U.S. at 374 n.9.

Plaintiff, however, incorrectly reads this footnote. Private individuals may only seek injunctive

relief under Ex Parte Young against individual state officers in their official capacities. The Ex

Parte Young exception does not apply to the Board, which is a state entity and not a state officer.

See Edwards v. Learfield Commc’ns, LLC, 687 F. Supp. 3d 1297, 1303 (N.D. Fla. 2023) (“Ex

Parte Young’s narrow exception to immunity ‘has no application in suits against the States and

their agencies, which are barred regardless of the relief sought.’”) (quoting P.R. Aqueduct & Sewer

Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993)) (internal citation omitted). The Board is

thus immune from suit for both monetary damages and injunctive relief under Titles I, II, and V

of the ADA.

C. Plaintiff’s Claims under the ADA Against Bailey and Kimbrow (Counts VI-

VIII)

As discussed above, one of the three situations where Eleventh Amendment immunity is

“surrendered” is when a state official is sued for prospective injunctive relief to end a continuing

violation of federal law. Harbert Intern., Inc. v. James, 157 F.3d 1271, 1278 (11th Cir. 1998)

(citations omitted). Under the Supreme Court’s decision in Ex Parte Young, a plaintiff challenging

a state official’s action on federal grounds may seek prospective injunctive relief. 209 U.S. 123

(1908). See also Nat’l Ass’n of the Deaf v. Fla., 980 F.3d 763 (11th Cir. 2020) (citing Pennhurst

State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102-03 (1984)). Again, as the Supreme Court

explained in Garrett, the “ADA still prescribes standards applicable to the States. Those standards

can be enforced by . . . private individuals in actions for injunctive relief under Ex Parte Young.”

531 U.S. at 374 n.9.

Defendants concede in their response that claims for injunctive relief may be brought

against Bailey and Kimbrow in their official capacities pursuant to the doctrine set out in Ex Parte

Young. (Doc. # 27 at 1). However, they contend that Plaintiff may only seek prospective injunctive

relief from Bailey and Kimbrow. The court agrees. “The Ex Parte Young exception permits

lawsuits against state officers that seek prospective equitable relief to end continuing legal

violations, though crucially, it does not extend to claims for retrospective relief.” Culverhouse v.

S. Union Cmty. Coll., 2021 WL 2417154, at *3 (M.D. Ala. June 14, 2021) (citing Edelman v.

Jordan, 415 U.S. 651, 664-66, 668 (1974)). Moreover, “[t]he ADA provides only prospective

injunctive relief for violations, and does not allow for damages for past discrimination or past

remedied violations.” Norkunas v. Seahorse NB, LLC, 444 F. App’x 412, 416 (11th Cir. 2011)

(citing 42 U.S.C. § 12188(a)(1)). “If the prospective relief sought is ‘measured in terms of a

monetary loss resulting from a past breach of a legal duty,’ it is the functional equivalent of money

damages and Ex Parte Young does not apply.” Fla. Ass’n of Rehab. Facilities, Inc. v. State of Fla.

Dep’t of Health & Rehab. Servs., 225 F.3d 1208, 1220 (11th Cir. 2000) (quoting Edelman, 415

U.S. at 669). Therefore, Plaintiff may only seek prospective injunctive relief as it applies to her

ADA claims against Defendants Bailey and Kimbrow.

IV. Conclusion

For the reasons outlined above, Defendants’ Motion to Dismiss (Doc. # 20) is due to be

granted in part and denied in part. An order consistent with this memorandum opinion will be

entered contemporaneously.

DONE and ORDERED this December 10, 2024.

CHIEF U.S. DISTRICT JUDGE

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