Ginwright v. Department of Revenue for the State of Alabama et al (CONSENT)

Filing 23

MEMORANDUM OPINION AND ORDER that Defendants' Motion to Dismiss 6 is GRANTED in PART and DENIED in PART. 1. The Motion is GRANTED as follows: a. All claims against the Individual Defendants in their official capacities are DISMISSED; b. Plai ntiff's Discrimination and Retaliation claims brought pursuant to the Rehabilitation Act against the Individual Defendants in their individual capacities are DISMISSED; c. Plaintiff's FMLA claims against the Individual Defendants in thei r individual capacities are DISMISSED; d. Plaintiff's FMLA self-care claims against the Department and the Individual Defendants in their official capacities are DISMISSED; e. Plaintiff's 42 U.S.C. § 1983 claims against the Departmen t and the Individual Defendants in their official capacities are DISMISSED; and 2. The Motion is DENIED as to: a. Plaintiff's Rehabilitation Act claim against the Department of Revenue; b. Plaintiff's FMLA claim under the family-care pro vision against the Department of Revenue; and c. Plaintiff's 42 U.S.C. § 1983 claim against the Individual Defendants in their individual capacities. 3. The Motion is DENIED as MOOT as to: a. Plaintiff's ADA claims; and b. The Constructive Discharge claim. Signed by Honorable Judge Wallace Capel, Jr on 3/21/2013. (Attachments: # 1 Civil Appeals Checklist)(jg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JACQUELINE GINWRIGHT,
Plaintiff,
v.
DEPARTMENT OF REVENUE FOR
THE STATE OF ALABAMA, et al.,
Defendants.

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CASE NO. 2:12-cv-473-WC

MEMORANDUM OPINION AND ORDER
Before the court is Defendants’ Motion to Dismiss (Doc. 6). Plaintiff filed an
Amended Complaint (Doc. 18) and Defendant filed a Supplement to the Motion to
Dismiss (Doc. 19). Plaintiff then filed a Supplemental Response in Opposition (Doc. 20).
Plaintiff’s Complaint names as Defendants the Alabama Department of Revenue,
Julie P. Magee, individually and in her official capacity as the Commissioner of Alabama
Department of Revenue; Charlie Lassiter, individually and in her official capacity as
Director of the Human Resources Division of the Alabama Department of Revenue; and
Annette Russell, individually and in her official capacity as the Family Medical Leave
Coordinator for the Alabama Department of Revenue. 1 The Complaint (Doc. 1) alleged
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In her Amended Complaint, Plaintiff states that “Annette Russell was, at the time of the
incidents giving rise to this Complaint, Assistant Director of Human Resources for the
Department of Revenue for the State of Alabama.” Am. Compl. (Doc. 18) at 2. However,
Defendants’ Motion to Dismiss states that “Ms. Russell is not nor has she ever been the Assistant
Director of the Human Resources Division. She has also never served as Acting Assistant

the following causes of action:
Count 1: Disability Discrimination in violation of the Rehabilitation Act of
1973, 29 U.S.C. § 701 et seq. and/or the Americans with Disabilities Act,
42 U.S.C. 12101 et seq.;
Count 2: Retaliation in violation of the Americans with Disabilities Act, 42
U.S.C. 12101 et seq. and/or the Rehabilitation Act of 1973, 29 U.S.C. § 701
et seq.;
Count 3: Violations of the Family and Medical Leave Act 29 U.S.C. §
2601 et seq.
Compl. (Doc. 1) at 7-14. Plaintiff then filed an Amended Complaint, seeking to “to
clarify her issues and also to allege the Court’s jurisdiction pursuant to 42 U.S.C. §
1983.” Pl.’s Resp to Mot. to Dismiss (Doc. 9) at 8. Plaintiff’s Amended Complaint
removed her ADA claims and added discrimination and retaliation claims pursuant to 42
U.S.C. § 1983. The Amended Complaint listed the following causes of action:
Count 1: Disability Discrimination in violation of the Rehabilitation Act of
1973, 29 U.S.C. § 701 et seq.;
Count 2: Retaliation in violation of the Rehabilitation Act of 1973, 29
U.S.C. § 701 et seq.;
Count 3: Violations of the Family and Medical Leave Act, 29 U.S.C. §
2601 et seq.;
Count 4: Violation of § 1983 - Disability Discrimination against the
Alabama Department of Revenue and the Individual Defendants in their
official capacities;
Count 5: Violation of § 1983 - Disability Discrimination against Individual
Defendants in their individual capacities
Count 6: Violation of § 1983 - Retaliation claim against the Alabama
Department of Revenue and the Individual Defendants in their official
capacities
Count 7: Violation of § 1983 - Retaliation claim against the Individual
Defendants in their individual capacities.

Director of the Human Resources Division.” Supp. to Mot. to Dismiss (Doc. 19) at 2. However,
it is undisputed that Defendant Russell did make decisions regarding Plaintiff’s FMLA leave
requests at the time of the incidents giving rise to this complaint.

Am. Compl. (Doc. 18).
Upon consideration of Defendants’ Motion to Dismiss (Doc. 6) and Supplement to
the Motion to Dismiss (Doc. 20), the court finds that the Motion (Doc. 6) is due to be
GRANTED in PART and DENIED in PART.
I.

FACTS
For purposes of considering Defendants’ Motion to Dismiss, the court presumes

that the allegations in the Complaint and Amended Complaint are true.
II.

STANDARD
Defendants filed the instant Motion to Dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(1) for lack of subject matter jurisdiction and Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.
A.

Rule 12(b)(1) Motion to Dismiss Standard

“A defendant can move to dismiss a complaint under Rule 12(b)(1) for lack of
subject matter jurisdiction by either facial or factual attack.” Stalley ex rel. U.S. v.
Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008). “A ‘facial
attack’ on the complaint ‘require[s] 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.’” McElmurray v. Consol.
Gov’t of Augusta–Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007) (quoting
Lawrence v. Dunbar, 919 F.3d 1525, 1529 (11th Cir. 1990)). “Factual attacks,” on the
other hand, serve to “challenge ‘the existence of subject matter jurisdiction in fact,

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irrespective of the pleadings, and matters outside the pleadings, such as testimony and
affidavits are considered.’” Id. In McElmurray v. Consol. Gov’t of Augusta–Richmond
Cnty., the Eleventh Circuit stated that a district court treated a motion to dismiss as a
facial, rather than factual, attack because it “considered only the complaint and the
attached exhibits.” 501 F.3d 1244, 1251 (11th Cir. 2007). When considering facial
challenges to subject matter jurisdiction, “the court must, as with a Rule 12(b)(6) motion,
take the complaint’s allegations as true.” Carmichael v. Kellogg, Brown & Root Servs.,
Inc., 572 F.3d 1271, 1279 (11th Cir. 2009) (citing Morrison v. Amway Corp., 323 F.3d
920, 925 n.5 (11th Cir. 2003); see Carmichael v. Kellogg, Brown & Root Servs., Inc., 564
F. Supp. 2d 1363, 1365 (N.D. Ga. 2008) (holding that “[i]n considering a facial
challenge, which simply alleges that the plaintiff failed to sufficiently allege a basis for
subject matter jurisdiction, a court must accept the allegations in the complaint as true,”
which is likened to the safeguards afforded a plaintiff when a Rule 12(b)(6) motion to
dismiss for failure to state a claim is raised).
B.

Rule 12(b)(6) Motion to Dismiss Standard

In deciding a Rule 12(b)(6) motion to dismiss, the court must accept all wellpleaded factual allegations in a complaint as true and take them in the light most
favorable to plaintiff.

Erickson v. Pardus, 551 U.S. 89, 94 (2007); Christopher v.

Harbury, 536 U.S. 403, 406 (2002). “To survive dismissal, the complaint’s allegations
must plausibly suggest that the [plaintiff] has a right to relief, raising that possibility
above a speculative level; if they do not, the plaintiff’s complaint should be dismissed.”

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James River Ins. Co. v. Ground Down Eng’g, Inc., 540 F.3d 1270, 1274 (11th Cir. 2008)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)); see also Edwards
v. Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).

The former rule—that “[a]

complaint should be dismissed only if it appears beyond doubt that the plaintiffs can
prove no set of facts which would entitle them to relief,” La Grasta v. First Union Sec.,
Inc., 358 F.3d 840, 845 (11th Cir. 2004)—has been retired by Twombly. James River Ins.
Co., 540 F.3d at 1274. Thus, the court engages in a two-step approach: “When there are
well-pleaded factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S.
662 (2009). The court need not accept as true legal conclusions or mere conclusory
statements. Id.
III.

DISCUSSION
A.

ADA Claims

Defendants assert Eleventh Amendment immunity from suit brought under the
Americans with Disabilities Act. Supp. to Mot. (Doc. 19) at 5. Plaintiff’s Response
(Doc. 9) to the Motion to Dismiss concedes that Eleventh Amendment immunity applies
to claims under the ADA and states, “If state employees pursue suit in federal courts to
recover money damages alleging that the state failed to comply with the ADA, the claim
is barred by the Eleventh Amendment. Accordingly, Ms. Ginwright will be filing a
motion for leave to file an amended complaint, that will remove her ADA claims and
focus on disability, retaliation and harassment claims under the Rehabilitation Act and

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also under 42 U.S.C. § 1983.” Pl.’s Resp to Mot. to Dismiss (Doc. 9) at 10-11. Because
Plaintiff conceded that Defendants are immune to civil suit under the ADA and because
she removed her ADA claims in her Amended Complaint (Doc. 18), Defendants’ Motion
to Dismiss is due to be denied as moot.
B.

Disability Discrimination
Rehabilitation Act

and

Retaliation

Claims

Under

the

Plaintiff raises disability discrimination and retaliation claims in violation of the
Rehabilitation Act and seeks declaratory and compensatory relief. (Counts 1-2). 2
1.

The Department and the Individual Defendants in their Official
Capacities

As to Plaintiff’s claims brought pursuant to the Rehabilitation Act, Defendants
correctly concede, that “[a]lthough, the Plaintiff’s ADA claim is barred by the Eleventh
Amendment, her Rehabilitation Act claim is not.” Supp. to Mot. (Doc. 19) at 6. The law
in the Eleventh Circuit is that states accepting federal funding waive their Eleventh
Amendment immunity. See 42 U.S.C. § 2000d–7 (“A State shall not be immune under
the Eleventh Amendment of the Constitution of the United States from suit in Federal
court for a violation of section 504 of the Rehabilitation Act of 1973 . . . or the provisions
of any other Federal statute prohibiting discrimination by recipients of Federal financial
assistance.”); Garrett v. Univ. of Ala. at Birmingham, 344 F.3d 1288, 1293 (11th Cir.

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Plaintiff has been disabled as a result of a fall in the Montgomery Mall in 1999 and an
automobile accident in 2006, which resulted in permanent disabling conditions in her back and
legs. These conditions make it very difficult for her to walk long distances and cause her pain on
a continuous and daily basis. She takes regular treatment for her back and leg pain. Am. Compl.
(Doc. 18) at 3.
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2003) (“Section 2000d–7 unambiguously conditions the receipt of federal funds on a
waiver of Eleventh Amendment immunity to claims under section 504 of the
Rehabilitation Act. By continuing to accept federal funds, the state agencies have waived
their immunity.”). Accordingly, Plaintiff’s disability and discrimination claims under the
Rehabilitation Act raised against the Department will survive Defendants’ motion to
dismiss.
However, to the extent Plaintiff raises claims against the Individual Defendants in
their official capacities, these claims are due to be dismissed.
Official capacity suits are suits against state agencies, not against the people
through whom agencies act. The Supreme Court has said that official
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.” [Kentucky v.] Graham, [473 U.S. 159, 167-68 (1985)].
Thus, to impose official liability on a government entity amenable to suit, a
plaintiff need do no more than name the government entity defendant; it is
unnecessary also to name specific agents.
Hobbs v. Roberts, 999 F.2d 1526, 1530 (11th Cir. 1993). Because Plaintiff has also
named the Alabama Department of Revenue in this case, any claim against the Individual
Defendants in their official capacities is duplicative of her claim against the Department.
Thus, Plaintiff’s claims against the Individual Defendants in their official capacities are
due to be dismissed.
2.

The Individual Defendants in their Individual Capacities

To the extent Plaintiff brings claims against the Individual Defendants in their
individual capacities, these claims are also due to be dismissed. Defendants “assert that

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in their individual capacities they are not the receiver of any federal funds covered under
this Act, and as a result all claims against them in their individual capacity should be
dismissed for lack of subject matter jurisdiction.” Supp. to Mot. (Doc. 19) at 6. The
United States Court of Appeals for the Eleventh Circuit has held that “there is no
individual capacity liability under Title II of the ADA or [Rehabilitation Act].” Badillo v.
Thorpe, 158 F. App’x 208, 211 (11th Cir. 2005). Thus, Plaintiff’s claims against the
Individual Defendants in their individual capacities are due to be dismissed.
C.

FMLA Claims

Plaintiff raises claims under both the self-care and family-care 3 provisions of the
FMLA and names as defendants the Department and the Individual Defendants in both
their official and individual capacities. (Count 3).
Plaintiff argues that “Congress has abrogated state sovereign immunity for Ms.
Ginwrights’ claims against the Defendants for violations of the FMLA and Rehabilitation
Act.” Pl.’s Resp to Mot. to Dismiss (Doc. 9) at 9. Specifically, that Congress has
abrogated Eleventh Amendment immunity for FMLA claims for family-related leave. Id.
1.

Individual Defendants in their Individual Capacities

To the extent Plaintiff brings an FMLA claim against the Individual Defendants in
their individual capacities, this claim is due to be dismissed. As Defendants correctly
point out, “[t]he Named Revenue Defendants assert that they are not Plaintiff’s

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In addition to Plaintiff’s own disability, Plaintiff’s daughter was born with Downs
Syndrome, often suffers from seizures, and requires continuous medical care.

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‘employer’ within the meaning of the FMLA and therefore should not be held
individually liable under the FMLA family-care provision, 29 U.S.C. §2612(a)(1)(C).”
Mot. (Doc. 19) at 7. Under Eleventh Circuit case law, state officials acting in their
individual capacity are not personally liable under the FMLA. See Wascura v. Carver,
169 F.3d 683, 687 (11th Cir. 1999) (FMLA) (“Because the law of this circuit requires us
to conclude that public officials in their individual capacities are not “employers” under
the FMLA, we hold that there is no federal subject matter jurisdiction over these
claims.”). Accordingly, Plaintiff’s FMLA claims, under both the self-care and familycare provisions, against the Individual Defendants in their individual capacities are due to
be dismissed.
2.

The Department and Individual Defendants in their Official
Capacities
a.

Family-Care Provision 4

As to Plaintiff’s FMLA claims brought under the family care provision,
Defendants correctly note that Congress abrogated Eleventh Amendment immunity for
claims brought under the family care provision, of the FMLA. See Nevada Dep’t of
Human Res. v. Hibbs, 538 U.S. 721 (2003). In Hibbs, the United States Supreme Court
addressed the authority of Congress to abrogate state sovereign immunity for claims
arising under the family-care provision of the FMLA and held that Congress had validly

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Under the family-care provision of the FMLA , 29 U.S.C. § 2612(a)(1)(C), “[A]n
eligible employee shall be entitled to a total of 12 workweeks of leave during any 12–month
period . . . In order to care for the spouse, or a son, daughter, or parent, of the employee, if such
spouse, son, daughter, or parent has a serious health condition.”
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abrogated state sovereign immunity when it enacted the FMLA family care provision.
Accordingly, Plaintiff’s FMLA claim under the family-care provision raised against the
Department will survive Defendants’ Motion to Dismiss.
Defendants’ Motion asserts that the Individual Defendants in their official capacity
are entitled to qualified immunity. See Mot. (Doc. 19) at 8-9. The court disagrees.
Qualified immunity is only a viable defense for government officials who are sued in
their individual capacities. Tapley v. Collins, 211 F.3d 1210, 1214 (11th Cir. 2000)
(“Under this common-law defense, public officials sued in their individual capacities are
entitled to qualified immunity when their actions do not violate ‘clearly established
statutory or constitutional rights.’” (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)); Rivas v. Freeman, 940 F.2d 1491, 1495 (11th Cir. 1991) (“This is an officialcapacities-lawsuit; thus, we hold that a qualified immunity defense is not available in this
lawsuit.”); Lundgren v. McDaniel, 814 F.2d 600, 604 (11th Cir. 1987) (“Qualified
immunity—the objective ‘good faith’ defense—is available only in a personal capacity
lawsuit, not in an official capacity action.” citing Kentucky v. Graham, 473 U.S. 159,
166-67 (1985)). However, as discussed above, see supra Section B, all claims against the
Individual Defendants in their official capacities are due to be dismissed.
Accordingly, because Congress validly abrogated Eleventh Amendment
immunity, Plaintiff’s FMLA claim brought under the family-care provision against the
Department will survive Defendants’ Motion to Dismiss.

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b.

Self-Care Provision 5

However, Plaintiff’s FMLA claims arising under the self-care provision 6 are due
to be dismissed. Defendants correctly contend that the Eleventh Amendment immunity
bar insulates the State from suit for alleged violations under FMLA’s self-care provision.
Supp. to Mot. (Doc. 19) at 9.
The United States Court of Appeals for the Eleventh Circuit has held that
Congress failed to abrogate validly the States’ sovereign immunity in the FMLA’s selfcare provisions. See Garrett v. Univ. of Ala. Bd. Of Trs., 193 F.3d 1214, 1219 (11th Cir.
1999) (“we hold in this case that Congress did not have the authority to abrogate the
sovereign immunity of the states on claims arising under the provision [the self-care
provision] at issue here.”), rev’d on other grounds Bd. of Trs. Of the Univ. of Ala. v.
Garrett, 531 U.S. 356, 374 (2001); see also Batchelor v. S. Fla. Water Mgmt. Dist., 242
F. App’x 652, 653 (11th Cir. 2007) (unpublished) (affirming Garrett’s validity postHibbs and stating, “Our holding in Garrett that Congress is without authority to abrogate
state sovereign immunity for claims arising under the self-care provision of the FMLA
remains the law of this Circuit.”). Thus, because there is no valid waiver or abrogation,
sovereign immunity attaches to these claims and neither the Department nor the
Individual Defendants in their official capacities can be sued in federal court for either

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Under the self-care provision of the FMLA , 29 U.S.C. § 2612(a)(1)(D) (“[A]n eligible
employee shall be entitled to a total of 12 workweeks of leave during any 12–month period . . .
[b]ecause of a serious health condition that makes the employee unable to perform the functions
of the position of such employee.”).

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money damages or injunctive relief. See Alabama v. Pugh, 438 U.S. 781 (1978).
D.

Section 1983 Claims

Pursuant to Section 1983, Plaintiff raises retaliation and disability discrimination
claims against the Department and the Individual Defendants in both their official and
individual capacities. See Am. Compl. (Doc. 18) (Counts 4-7).
1.

The Department and the Individual Defendants in their Official
Capacities

Any Section 1983 claim Plaintiff raises against the Department and the Individual
Defendants in their official capacities is due to be dismissed. As Defendants correctly
argue, the law is clear that the Department and the Individual Defendants in their official
capacities are not persons for purposes of Section 1983. See Will v. Michigan Dep’t of
State Police, 491 U.S. 58, 71 (1989) (holding that “neither a State nor its officials acting
in their official capacities are ‘persons’ under § 1983”).” The law is also clear that
Congress did not abrogate Eleventh Amendment immunity with the enactment of 42
U.S.C. § 1983. See, e.g., Hamilton v. Florida Dep’t of Educ./Vocational Rehab. Servs.,
152 F. App’x 771, (11th Cir. 2005) (Eleventh Amendment bars disability discrimination
claims under § 1983 against employees, in their official capacities).
a.

Claim for Injunctive Relief

Plaintiff concedes that under Will v. Michigan Dep’t of State Police, 491 U.S. 58
(1989), neither the Department nor the Individual Defendants in their official capacity are
persons under Section 1983. See Pl.’s Resp. (Doc. 20) at 9. However, Plaintiff argues
that “‘a state official in his or her official capacity, when sued for injunctive relief, would
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be a person under § 1983 because ‘official-capacity actions for prospective relief are not
treated as actions against the State.’” Id. Plaintiff notes that her “§ 1983 claims although
requesting relief in damages, request declaratory, injunctive and/or prospective relief.”
Id. at 10. Plaintiff also asserts that the Ex Parte Young, 209 U.S. 123 (1908), exception
to Eleventh Amendment immunity for prospective relief to enjoin continuing violations
of the federal constitution applies to her claims. Id. at 10-11.
The court disagrees and finds that the result is the same as to Plaintiff’s request for
injunctive relief. Normally, individuals sued in their official capacities would be a person
under Section 1983 if sued for injunctive relief. Under the Ex Parte Young exception, the
Eleventh Amendment sovereign immunity may not apply to bar relief under § 1983 when
a state official is sued for prospective injunctive relief to “end a continuing violation of
federal law.” See Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 73 (1996) (quoting Green
v. Monsour, 474 U.S. 64, 68 (1986)). Ex Parte Young, 209 U.S. 123 (1908), carves out a
narrow exception to Eleventh Amendment immunity by permitting suits for prospective
relief against state officials for violations of federal or constitutional law by those
officials. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984). See also
Aguilar v. Texas Dep’t of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998) (“To
meet the Ex Parte Young exception, a plaintiff’s suit alleging a violation of federal law
must be brought against individual persons in their official capacities as agents of the
state, and the relief sought must be declaratory or injunctive in nature and prospective in
effect.”); Neuwirth v. Louisiana State Bd. of Dentistry, 845 F.2d 553, 555 (5th Cir. 1988)

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(Ex Parte Young exception “enables a federal court to entertain a suit for prospective
relief against a defendant state officer upon allegations that he violated federal law, based
on the legal fiction that a state officer cannot then be acting pursuant to state authority”).
Here, Plaintiff is indeed seeking prospective relief, requesting the court to:
Enter a mandatory, preliminary and permanent injunction requiring
Defendants to implement a rigorous anti-discrimination policy and to
provide meaningful training to all employees of the Alabama Department
of Revenue regarding disability discrimination, harassment and retaliation;
Enter a mandatory, preliminary and permanent injunction requiring
Defendants to remove all records of discriminatory disciplinary actions
from Ms. Ginwright’s personnel file; and properly compensate her for any
time she has missed because of Defendants’ failure and/or refusal to
accommodate her, in disciplining her and refusing to grant FMLA leave to
her.
Am. Compl. (Doc. 18) at 17.

However, Defendants contend the Ex Parte Young

exception does not apply because Plaintiff is no longer employed by the Department of
Revenue. Supp. to Mot. (Doc. 19) at 13. The court agrees.

Plaintiff applied for

retirement on June 9, 2011 and the Department approved her retirement on August 3,
2011. Am. Compl. (Doc. 18) at 6. Accordingly, the court finds Plaintiff lacks standing
to seek prospective relief of any kind because she is no longer employed by the
Department. See, e.g., Armstrong v. Turner Indus., Inc., 141 F.3d 554, 563 (5th Cir.
1998) (recognizing that plaintiff, who cannot show probability of future injury, lacks
standing to seek prospective injunctive relief); Wallace v. Texas Tech. Univ., 80 F.3d
1042, 1047 n.3 (5th Cir. 1996) (“Jurisdiction over a plaintiff’s claims for future relief is
appropriate only if a reasonable likelihood exists that the plaintiff will again be subjected

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to the allegedly unconstitutional actions.”); Eisfelder v. Michigan Dep’t of Natural Res.,
847 F. Supp. 78, 82 n.1 (W.D. Mich. 1993) (“[S]ince plaintiff has retired, her requests
that the policies and practices in the workplace be declared illegal and ordered modified
are moot.”). This case is similar to Leverette v. Alabama Revenue Dep’t, 453 F. Supp. 2d
1340 (M.D. Ala. 2006). In that case, the plaintiff argued that “the Revenue Department
and Henniger discriminated against her in that her unaccommodated disability forced her
to take an early retirement, which in turn decreased her future retirement benefits.”
Leverette, 453 F. Supp. 2d at 1344. Leverette sought “injunctive relief requiring the
department and Henniger to grant her the benefits she would have been entitled to had
she not retired early.” Id. The Leverette court held that “[a]lthough styled as prospective
relief, this type of injunctive relief is barred by the Eleventh Amendment because it aims
to vindicate a retrospective interest in compensation rather than a prospective interest in
ending a continued legal violation.” Id. (citing Florida Ass’n of Rehab. Facilities, Inc. v.
State Dep’t of Health & Rehab., Servs., 225 F.3d 1208, 1219-20 (11th Cir. 2000)). Like
in Leverette, in this case, “[Plaintiff’s] alleged discriminatory experiences and forced
resignation are past transgressions. Even assuming her harm is ongoing, in the sense that
she continues to receive less retirement benefits, this harm does not render the relief she
seeks for these alleged prior bad acts any less retrospective.” Id. (citing Florida Ass’n of
Rehab. Facilities, 225 F.3d at 1221). Instead, when relief labeled as prospective 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.” Id.

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(citing Florida Ass’n of Rehab. Facilities, 225 F.3d at 1220).
The court further held that “Leverette’s request for a declaratory judgment—that
is, a declaration that, among other things, the Revenue Department and Henniger violated
the ADA—is barred as well. ‘She may not use the doctrine to adjudicate the legality of
past conduct.’” Id. (quoting Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326, 1337
(11th Cir. 1999)).

Thus, in this case, Plaintiff’s Section 1983 claims against the

Department and the Individual Defendants in their official capacities, whether for
retrospective, prospective, and/or declaratory relief are due to be dismissed.
2.

Individual Defendants in their Individual Capacities

Plaintiff’s Section 1983 claims are premised on violations of the Equal Protection
Clause of the Fourteenth Amendment to the United States Constitution. Specifically,
Plaintiff alleges:
. . . Defendants Magee, Lassiter and Russell, in their individual
capacities, separately and in concert with one another, intentionally and
wrongfully discriminated against Plaintiff on the basis of her disability and
other terms and conditions of employment in violation of the Fourteenth
Amendment and 42 U.S.C. § 1983. In particular, Defendants refused to
grant her requests for accommodation and they refused to grant her FMLA
leave.
Under the Equal Protection Clause of the Fourteenth Amendment of
the United States Constitution, Ms. Ginwright has a right to be free from
disability discrimination with respect to the terms and conditions of her
employment with Defendant Alabama Department of Revenue. Defendants
Magee, Lassiter and Russell, in their individual capacities, under color of
state law, in violation of 42 U.S.C. § 1983, purposefully deprived Ms.
Ginwright of clearly established federal statutory and constitutional rights
by subjecting her to intentional and unlawful discriminatory practices based
upon her disability. In particular, Defendants refused to grant Ms.
Ginwright’s requests for accommodation, disciplined her when she could
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not come to work due to her and/or her daughter’s disabling conditions, and
refused to grant her FMLA leave.
...
. . . Defendants Magee, Lassiter and Russell, in their individual
capacities, separately and in concert with one another, intentionally and
wrongfully retaliated against Ms. Ginwright for her complaint of
discrimination, or otherwise for her participation in protected activity in
violation of the Fourteenth Amendment and 42 U.S.C. § 1983. Such
retaliation was taken with malice or reckless indifference to the federally
protected rights of Ms. Ginwright.
Under the Equal Protection Clause of the Fourteenth Amendment of
the United States Constitution, Ms. Ginwright has a right to be free from
disability discrimination and retaliation in her employment with the
Alabama Department of Revenue and Defendants Magee, Lassiter and
Russell, in their individual capacities, under color of state law, in violation
of 42 U.S.C. § 1983, purposefully deprived Ms. Ginwright of clearly
established federal statutory and constitutional rights by subjecting her to
intentional and unlawful discriminatory and retaliatory practices based
upon her disability by harassing her, denying her requests for
accommodations, and denying her requests for FMLA leave.
Am. Compl. (Doc. 18) at 17-18 & 21. Essentially, Plaintiff rests her § 1983 claims on
her allegation that the individual defendants failed to accommodate her disability, refused
to grant her FMLA leave, and disciplined her.
The Individual Defendants assert “they are entitled to qualified immunity from
liability under § 1983 if their actions were undertaken in good faith and did not violate
the clearly established rights.” Mot. (Doc. 6) at 6.
“Qualified immunity protects government officials performing discretionary
functions from civil trials (and the other burdens of litigation, including discovery) and
from liability if their conduct violates no ‘clearly established statutory or constitutional

17

rights of which a reasonable person would have known.’” Lassiter v. Alabama A & M
Univ., Bd. of Trs., 28 F.3d 1146, 1149 (11th Cir. 1994) (en banc) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). To determine whether a public official is entitled
to qualified immunity, the Eleventh Circuit requires district courts to apply a two-step
burden-shifting analysis. First, the public official Defendants bear the burden of proving
that they were acting within the scope of their discretionary authority at the time the
alleged violation occurred. See Priester v. City of Riviera Beach, 208 F.3d 919, 926
(11th Cir. 2000). Second, once Defendants have discharged this burden, “the plaintiff
must demonstrate that the official’s acts, at the time they were taken, violated clearly
established federal statutory or constitutional rights of which a reasonable person would
have known.” 7 Id.; see also Busby v. City of Orlando, 931 F.2d 764, 773 (11th Cir.
1991).
The parties do not dispute that the Individual Defendants were acting within the
scope of their authority. Accordingly, the only question in dispute is whether Plaintiff’s
rights under the Equal Protection Clause of the Fourteenth Amendment were clearly
established at the time of Defendants’ actions.
Defendants contend:

7

Where the law that the defendant allegedly violated was not clearly established at
the time of the alleged offense, the defendant is entitled to qualified immunity. See
Stewart v. Baldwin Cnty. Bd. of Educ., 908 F.2d 1499, 1503 (11th Cir. 1990). “If the law
was clearly established, the immunity defense ordinarily should fail since a reasonably
competent public official should know the law governing his conduct.” Harlow, 457 U.S.
at 818-19.
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In the present case, there is absolutely no evidence that any of the Revenue
Defendants are incompetent or knowingly violated any clearly established
statutory or constitutional rights of which a reasonable person would have
known. As stated by the Eleventh Circuit in Foy, the plaintiff cannot carry
this burden by alleging the violation of constitutional rights in general
terms.
Supp. to Mot. (Doc. 19) at 20. Plaintiff asserts “that under the Equal Protection Clause of
the Fourteenth Amendment of the United States Constitution, she has a clearly
established right to be free from harassment, disability discrimination and retaliation in
her employment with the Alabama Department of Revenue.” Resp. (Doc. 20) at 12-13.
First, the court notes that Plaintiff may assert a violation of the Equal Protection
Clause based on alleged disability discrimination through Section 1983. See, e.g., Yates
ex rel. Estate of Yates v. Beck, 2003 WL 22231260, at *7 (W.D.N.C. Aug. 22, 2003)
(finding that “the facts alleged by Plaintiff suffice, if barely, to state a claim under the
Equal Protection Clause for irrational and arbitrary discrimination between [the plaintiff]
and other public employees” because “the face of the Complaint does not suggest a
rational basis, and as all reasonable inferences from the allegations must be drawn in
Plaintiff's favor, the [court] is unable to say that no equal protection “relief could be
granted under any set of facts that could be proved consistent with the allegations.”
(quoting Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984)).
Second, the court finds that Plaintiff’s “right not to be discriminated against by
public officials on the basis of physical disability without at least some rational
explanation” was clearly established at the time of the events forming the basis for
Plaintiff’s Complaint. See Yates ex rel., 2003 WL 22231260, at *7 (W.D.N.C. Aug. 22,
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2003) (citing Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (recognizing that
the contours of equal protection right not to be treated differently from similarly situated
persons where there is no rational basis for difference in treatment had previously been
established); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985)
(distinctions based on mental retardation need only be rationally related to legitimate
government interest to withstand equal protection challenge); and Brown v. North
Carolina Div. of Motor Vehicles, 166 F.3d 698, 706 (4th Cir. 1999) (applying rational
basis standard articulated in Cleburne to distinctions based on physical disabilities)).
Accordingly, because all reasonable inferences from the allegations must be drawn
in Plaintiff's favor, and no rational basis appears on the face of the Complaint, the court is
unable to say, at this juncture, that no equal protection “relief could be granted under any
set of facts that could be proved consistent with the allegations.” Hishon, 467 U.S. at 73.
Accordingly, the court finds that Defendants’ Motion to Dismiss is due to be denied as to
their qualified immunity defense.
E.

Rule 12(b)(6) Motion for Failure to State a Claim

Defendants’ also seek dismissal asserting Plaintiff has failed to state a claim for
which relief can be granted.
1.

Constructive Discharge

Defendants contend that Plaintiff has failed to state a claim for which relief can be
granted regarding her Constructive Discharge claim. Supp. to Mot. (Doc. 19) at 27.
Plaintiff’s Response concedes “that no constructive discharge claim was made in either

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[her] complaint [or Amended Complaint].” Pl.’s Resp. (Doc. 20) at 18. To the extent
Plaintiff now seeks to raise a constructive discharge claim in her Response to the Motion
to Dismiss, the court will disregard that claim and analyze the Motion to Dismiss under
the assertions set forth in the Complaint and Amendment Complaint as Plaintiff would be
raising that constructive discharge claim for the first time in her Response. As Plaintiff
herself concedes, neither her Complaint nor her Amendment Complaint allege a
constructive discharge claim. “Plaintiff may not supplant allegations made in h[er]
Complaint with new allegations raised in a response to a motion to dismiss.” Rule v.
Chase Home Fin. LLC, 2012 WL 1833394, at *4 (M.D. Ga. May 18, 2012) (citing Irwin
v. Miami–Dade Cnty. Pub. Schs., 2009 WL 465038, at *2 (S.D. Fla., Feb. 24, 2009)
(citations omitted) (disregarding the new allegations and analyzing motion to dismiss
under the assertions set forth in the Second Amended Complaint) and Bickley v.
Caremark RX, Inc., 461 F.3d 1325, 1330 (11th Cir. 2006) (holding court is limited to
“reviewing what is within the four corners of the complaint on a motion to dismiss.”)).
Because there is no constructive discharge claim alleged, the court finds Defendants’
motion to dismiss is denied as moot as to this claim.
2.

Reasonable Accommodation

Defendants also argue that Plaintiff has failed to state a claim for which relief can
be granted because the Defendants offered her a reasonable accommodation. The court
finds that a determination of whether or not Defendants provided Plaintiff with a
reasonable accommodation would be improper on a motion to dismiss. Whether the

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accommodations that were offered were reasonable and Defendants could provide them
to Plaintiff without undue hardship are factual inquiries that are not properly decided in
the context of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).
“Without full development of the record, the Court cannot determine whether Plaintiff[]
received the accommodation [she] requested and whether the requested accommodation
was reasonable.” Solodar v. Old Port Cove Lake Point Tower Condo. Ass’n, Inc., 2012
WL 1570063, at *6 (S.D. Fla. May 2, 2012) (citing Terrell v. USAir, 132 F.3d 621, 626
(11th Cir. 1998) (“Whether an accommodation is reasonable depends on specific
circumstances”)). Accordingly, the court finds that Defendants’ argument fails.
IV.

CONCLUSION
For the reasons discussed above, it is ORDERED that Defendants’ Motion to

Dismiss (Doc. 6) is GRANTED in PART and DENIED in PART.
1.

The Motion is GRANTED as follows:
a.

All claims against the Individual Defendants in their official
capacities are DISMISSED;

b.

Plaintiff’s Discrimination and Retaliation claims brought pursuant to
the Rehabilitation Act against the Individual Defendants in their
individual capacities are DISMISSED;

c.

Plaintiff’s FMLA claims against the Individual Defendants in their
individual capacities are DISMISSED;

d.

Plaintiff’s FMLA self-care claims against the Department and the

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Individual Defendants in their official capacities are DISMISSED;
e.

Plaintiff’s 42 U.S.C. § 1983 claims against the Department and the
Individual Defendants in their official capacities are DISMISSED;
and

2.

The Motion is DENIED as to:
a.

Plaintiff’s Rehabilitation Act claim against the Department of
Revenue;

b.

Plaintiff’s FMLA claim under the family-care provision against the
Department of Revenue; and

c.

Plaintiff’s 42 U.S.C. § 1983 claim against the Individual Defendants
in their individual capacities.

3.

The Motion is DENIED as MOOT as to:
a.

Plaintiff’s ADA claims; and

b.

The Constructive Discharge claim.

Done this 21st day of March, 2013.

/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE

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