Cobb v. State of Alabama et al

Filing 32

OPINION AND ORDER directing as follows: (1) plf Janie D. Cobb's 26 objections are sustained in part and overruled in part; (2) the 25 REPORT AND RECOMMENDATION of the Mag Judge is adopted in part and rejected in part; (3) Defendants State of Alabama, Bob Riley, Nancy Buckner, Conitha King, and Craig Nelson's 14 First MOTION to Dismiss is granted in part and denied in part; (4) the following claims are dismissed: (a) Plaintiff Cobb's ADA, ADEA, FMLA, and Title VII claims agai nst the individual moving defendants in their personal capacity; (b) plf Cob's ADA, ADEA, and FMLA claims against def State of Alabama; (c) plf Cobb's ADA, ADEA, FMLA, and Title VII claims for money damages against the individual moving def endants in their official capacities; (5) said motion to dismiss is denied as to the following claims, which remain pending: (a) Plaintiff Cobb's ADA, ADEA, FMLA, and Title VII claims for prospective relief, as described in this opinion, against the individual moving defendants in their official capacity; (b) plf Cobb's Title VII claim for money damages against def state of Alabama; (6) because defendant Jackie Graham did not participate in the first motion to dismiss, this order is in applicable to her; (7) Plf Cobb's Title VI claim remains pending; (8) The moving defendants' alternative 14 motion for a more definite statement is denied; (9) because the Alabama Department of Human Resources is not a party, this order is inapplicable to it; further ORDERING that this cause is referred back to the magistrate judge for further appropriate proceedings. Signed by Honorable Judge Myron H. Thompson on 8/22/11. (Attachments: # 1 civil appeals checklist)(djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

JANIE D. COBB,
Plaintiff,
v.
STATE OF ALABAMA,
et al.,
Defendants.

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CIVIL ACTION NO.
2:10cv502-MHT
(WO)

OPINION AND ORDER
In this lawsuit, plaintiff Janie D. Cobb, a pro se
litigant, charges that various officials of the State of
Alabama discriminated against her on the basis of age,
gender, and perceived disability in violation of the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. § 621,
et seq.; the Family and Medical Leave Act (FMLA), 29
U.S.C. § 2601, et seq.; Title VI and Title VII of the
Civil Rights Act, 42 U.S.C. § 2000d, et seq.; and the
Americans with Disabilities Act (ADA), 42 U.S.C. § 12101,
et seq.

Cobb alleges that the officials required her to

work near toxic chemicals that eventually made her ill.

She asserts that they then forced her to take mandatory
sick leave without the FMLA’s protections.

She names as

defendants the State of Alabama as well as the following
individuals: former Governor Bob Riley, Nancy Buckner,
Conitha King, Craig Nelson, and Jackie Graham, all of
whom are sued in their personal and official capacities.
This

court

has

jurisdiction

under

28

U.S.C.

§

1331

(federal question) and 42 U.S.C. § 1343 (civil rights).
All the defendants, except Graham, have moved to
dismiss all of Cobb’s claims, except the Title VI one, on
sovereign

immunity

grounds.

The

magistrate

judge

recommends dismissal of the ADEA, FMLA, and ADA claims as
to all moving defendants, and the dismissal of the Title
VII claims against the individual moving defendants in
their personal and official capacities.

The magistrate

judge further recommends denying the moving defendants’
alternative motion for a more definite statement.

The

magistrate judge also set aside the res judicata issue
until summary judgment.

For the following reasons, the

2

magistrate
Cobb’s

judge’s

requests

recommendation

for

prospective

is

rejected

relief

under

as

to

these

statutes and is adopted in all other respects.

I.

Standard of Review

Under 28 U.S.C. § 636(b)(1), this court conducts a de
novo review of a magistrate judge’s recommendation on a
motion to dismiss.

II.

Discussion
A.

As an initial matter, there is some confusion as to
whether the Alabama Department of Human Resources (DHR)
is a party in this matter.

In his recommendation, the

magistrate judge refers to DHR as a defendant even though
the court docket does not list DHR as a party and there
is no evidence of service, or even attempted service, on
DHR.
the

Admittedly, DHR is referred to as a defendant in
motion to dismiss at issue.

However, upon a close

reading of Cobb’s complaint and her July 22, 2010, reply
3

to a court order seeking clarification, it is clear that
Cobb did not name DHR as a defendant in this case.

DHR

is

the

therefore

not

a

party.

To

the

extent

that

magistrate judge’s recommendation names and discusses DHR
as a party, this court will view that discussion as
surplusage.

B.
The magistrate judge recommends granting the motion
to dismiss the ADA, ADEA, and FMLA claims.

Cobb objects

to these findings, arguing that Alabama and its officials
are liable under these statutes.

The moving defendants

have not filed a response to this objection.

Before

jumping into the sovereign-immunity thicket, the court
highlights four categories of claims and defendants to
serve as guideposts: (1) claims against officials acting
in their individual capacity; (2) claims against the
State;

(3)

claims

against

state

officials

in

their

official capacities for retrospective relief; and (4)

4

claims

against

state

officials

in

their

official

capacities for prospective relief.
First,

the

magistrate

judge

properly

recommends

dismissing the claims against officials in their personal
or individual capacity.

Under Eleventh Circuit case law,

officials acting in their individual capacity are not
personally liable under the ADA, ADEA, and FMLA.

See

Albra v. Advan, Inc., 490 F.3d 826 (11th Cir. 2007)
(ADA); Smith v. Lomax, 45 F.3d 402, 403 n.4 (11th Cir.
1995) (ADEA); Wascura v. Carver, 169 F.3d 683, 687 (11th
Cir. 1999) (FMLA).
Second, the magistrate judge correctly found that
Alabama has sovereign immunity with respect to these
claims.

Indeed, the Supreme Court has directly

spoken

to the issue of whether Congress validly abrogated the
States’ sovereign immunity when it enacted the ADA and
ADEA.

See Bd. of Trs. of the Univ. of Ala. v. Garrett,

531 U.S. 356 (2001) (ADA); Kimel v. Florida Bd. of
Regents, 528 U.S. 62 (2000) (ADEA).

5

And notwithstanding

the Supreme Court’s holding on the FMLA’s family-leave
provisions, Nevada Dep’t of Human Resources v. Hibbs, 538
U.S. 721 (2003), the Eleventh Circuit Court of Appeals
has held that Congress failed to abrogate validly the
States’

sovereign

immunity

in

the

FMLA’s

provisions, which are at issue in this case.

self-care
See Garrett

v. Univ. of Ala. Bd. Of Trs., 193 F.3d 1214, 1219 (11th
Cir. 1999), rev’d on other grounds Garrett, 531 U.S. at
374; see also Batchelor v. S. Fla. Water Mgmt. Dist., 242
Fed.

Appx.

652,

653

(11th

Cir.

2007)

(unpublished)

(affirming Garrett’s validity post-Hibbs).

Absent a

valid waiver or abrogation, Alabama may not be sued in
federal court for either money damages or injunctive
relief.

See Alabama v. Pugh, 438 U.S. 781 (1978).

Third, the magistrate judge’s recommendation for the
dismissal

of

Cobb’s

requests

for

damages

against

officials in their official capacities should be adopted.
An official-capacity suit for damages is treated the same
as a suit against the State itself.

6

See Kentucky v.

Graham, 473 U.S. 159, 165-66 (1985).

Because Alabama may

not be sued for money damages under these causes of
action, the official-capacity requests for damages must
fail.
Finally,

the

court

turns

to

the

question

of

prospective relief against the state officials in their
official capacities.

The magistrate judge’s reasoning

reveals

conflating

two

errors:

claims

officials and the State itself;

against

state

and construing Cobb’s

requests for prospective relief as retrospective relief.
The magistrate judge incorrectly rejected relief against
the

state

officials

because

he

believed

that

suits

against state officials should be treated the same as
suits against the State itself.
16 (Doc. No. 25).

See Recommendation, at

While this is true for money damages,

the Supreme Court held in Ex parte Young, 209 U.S. 123
(1908),

that

official-capacity

suits

for

prospective

relief may proceed, regardless of sovereign immunity.

7

Of course, Ex parte Young’s “legal fiction” only
encompasses
relief.

requests

for

injunctive

or

declaratory

Young’s exception to sovereign immunity is not

triggered if the requested “prospective relief is the
functional equivalent of money damages.” Summit Medical
Assoc., P.C. v. Pryor, 180 F.3d 1326, 1337 (11th Cir.
1999); see also Edelman v. Jordan, 415 U.S. 651, 668
(1974) (holding that the Eleventh Amendment prohibited
the award of retroactive payments as compensation).

The

magistrate

for

judge

reasoned

that

Cobb’s

requests

prospective relief against the state officials in their
official capacities were, in fact, retrospective because
they

sought

damages

“the

and

violations

of

functional

addresse[d]
federal

past

law.”

equivalent

of

monetary

conduct,

not

ongoing

Recommendation,

at

11.

Accordingly, he recommends dismissing those requests for
relief on Eleventh Amendment grounds.
The question, then, is whether Cobb’s requests for
relief against state officials in their official capacity

8

are accurately characterized as seeking prospective or
retrospective

relief.

In

determining

whether

Young

applies, “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 Maryland, Inc. v.
Public Service Comm. of Maryland, 535 U.S. 635, 645
(2002) (quoting Idaho v. Coeur d’Alene Tribe of Idaho,
521

U.S.

261,

296

(1997))

(alteration

in

original).

After an examination of the complaint, it is clear that
the magistrate judge improperly lumped together Cobb’s
requests

for

prospective

relief

and

treated

them

as

requests for retrospective relief.
Cobb’s complaint requests several distinct forms of
prospective

relief.

First,

Cobb

seeks

immediate

reinstatement to her old position (or a higher one).
Comp. at a (Doc. No. 1).
defendants

expunge

all

Second, she asks that the
adverse

employment

records

relating to the unlawful disability discrimination.

9

Id.

at g.

Finally, she explicitly seeks prospective relief

for her FMLA claims: a declaratory judgment on the FMLA
claim, id. at d; and an injunction requiring compliance
with the FMLA, id. at e.
Young’s

“ongoing

and

continuous

requirement”

for

prospective relief is satisfied here. Summit, 180 F.3d at
1338.

Reinstatement

prospective relief.

is

a

quintessential

form

of

See Cross v. State of Ala., State

Dep’t of Mental Health & Mental Retardation, 49 F.3d
1490, 1503 (11th Cir. 1995); see also State Employees
Bargaining Agent Coalition v. Rowland, 494 F.3d 71, 96
(2d Cir. 2007) (commenting that every circuit to address
the question has held that sovereign immunity does not
bar

reinstatement

Regarding

after

expungement,

an
the

unlawful

termination).

existence

of

adverse

employment records predicated on unlawful discrimination
is an ongoing constitutional violation.

If the disputed

records were to remain in her file, Cobb could one day be
unfairly

maligned

by

these

10

allegedly

discriminatory

records.
(11th

Cf. Camp v. Cason, 220 Fed. Appx. 976, 982

Cir.

employment

2007)

(treating

records

for

claim

for

expungement

of

Privacy

Act

violation

as

prospective relief); Valmonte v. Bane, 18 F.3d 992 (2d
Cir. 1994) (holding that erroneous listing on child-abuse
registry was an ongoing due process violation). And, of
course, a request for declaratory and injunctive relief
pursuant to the FMLA is prospective relief.
However,

Cobb

does

conflate

her

requests

for

prospective and retrospective relief in some respects.
When requesting reinstatement, she also asks for the
“return [of] los[t] benefits.” Comp. at a.

To the extent

that this request is construed as “back pay,” Cobb is
seeking retrospective relief. See Lussier v. Dugger, 904
F.2d 661, 669 (11th Cir. 1990) (holding that the reward
of certain retroactive pay and benefits “would constitute
the payment of money damages from the state treasury”).
Additionally,

Cobb

seeks

medical

and

out-of-pocket

expenses, back pay, and liquidated damages under the

11

FMLA.

Comp. at h-j.

These requests for relief are

retrospective and, therefore, are barred by sovereign
immunity.

See Edelman, 415 U.S. at 677 (“[A] federal

court's remedial power, consistent with the Eleventh
Amendment...may not include a retroactive award which
requires the payment of funds from the state treasury.”)
(internal citations omitted).

Although the magistrate

judge erred by treating Cobb’s request for liquidated
damages under the FMLA as a request for punitive damages
under Title VII, Cobb’s request still fails because it is
retrospective.

* * *

For the foregoing reasons, it is ORDERED as follows:
(1) Plaintiff Janie D. Cobb’s objections (Doc. No.
26) are sustained in part and overruled in part.
(2) The magistrate judge’s recommendation (Doc. No.
25) is adopted in part and rejected in part.

12

(3) Defendants State of Alabama, Bob Riley, Nancy
Buckner, Conitha King, and Craig Nelson’s first motion to
dismiss (Doc. No. 14) is granted in part and denied in
part.
(4) The following claims are dismissed:
(a) Plaintiff Cobb’s ADA, ADEA, FMLA, and
Title VII claims against the individual moving
defendants in their personal capacity.
(b) Plaintiff Cobb’s ADA, ADEA, and FMLA
claims against defendant State of Alabama.
(c) Plaintiff Cobb’s ADA, ADEA, FMLA, and
Title VII claims for money damages against the
individual moving defendants in their official
capacities.
(5) Said motion to dismiss is denied as to the
following claims, which remain pending:
(a) Plaintiff Cobb’s ADA, ADEA, FMLA, and
Title

VII

described

claims
in

for

this

prospective
opinion,

13

relief,

against

as
the

individual moving defendants in their official
capacity.
(b) Plaintiff Cobb’s Title VII claim for
money

damages

against

defendant

State

of

Alabama.
(6)

Because

defendant

Jackie

Graham

did

not

participate in the first motion to dismiss, this order is
inapplicable to her.
(7) Plaintiff Cobb’s Title VI claim remains pending.
(8) The moving defendants’ alternative motion for a
more definite statement (Doc. No. 14) is denied.
(9) Because the Alabama Department of Human Resources
is not a party, this order is inapplicable to it.
It is further ORDERED that this cause is referred
back to the magistrate judge for further appropriate
proceedings.
DONE, this the 22nd day of August, 2011.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE