Page v. Arkansas State University System et al
ORDER granting in part and denying in part 9 Motion to Dismiss; denying 4 Motion to Dismiss as moot. This Court declines to dismiss Mr. Page's claims against Mr. Martin and Ms. Winn in their official capacities as redundant to his claim s against ASU. This Court dismisses as a matter of law Mr. Page's employment discrimination claims purportedly brought under Title II of the ADA. This Court denies Mr. Martin and Ms. Winn's motion to dismiss Mr. Pages FMLA claims against them in their individual capacities. Signed by Judge Kristine G. Baker on 2/14/2014. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
Case No. 3:13-cv-00077-KGB
ARKANSAS STATE UNIVERSITY;
RANDY MARTIN, individually and
in his official capacity, and Lori WINN,
individually and in her official capacity.
Plaintiff Bruce Page brings this action for alleged violations of Title II of the Americans
with Disabilities Act of 1990, 42 U.S.C. § 12131 et seq. (the “ADA”), Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794 (the “Rehabilitation Act”), against his former
employer, Arkansas State University (“ASU”), and against Randy Martin and Lori Winn. Mr.
Page also brings claims against Mr. Martin and Ms. Winn in their individual capacities only for
alleged violations of the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. (the
“FMLA”), and the Arkansas Civil Rights Act, § 16-123-101 et seq. (the “ACRA”) (Dkt. No. 6).
Defendants moved to dismiss Mr. Page’s claims under Federal Rule of Civil Procedure 12(b)(6)
(Dkt. No. 4). Mr. Page responded (Dkt. No. 7). On April 19, 2013, Mr. Page amended his
complaint (Dkt. No. 6). Defendants now move to dismiss the amended complaint for failure to
state a claim upon which relief may be granted (Dkt. No. 9). For the reasons explained below,
defendants’ motion to dismiss the amended complaint is granted in part and denied in part (Dkt.
No. 9). Defendants’ original motion to dismiss is denied as moot (Dkt. No. 4).
In his amended complaint, Mr. Page alleges the following, which the Court accepts as
true for purposes of resolving the current motion to dismiss. ASU employed more than 50
people during each week in 2011 and 2012 within 75 miles of the work site. ASU also receives
federal financial aid. Mr. Martin is the Chief of Police, and Ms. Winn is the Director of Human
Services. Mr. Page was terminated by Mr. Martin and Ms. Winn, who had the power to hire and
Mr. Page alleges that he is, or is regarded as, a person with a disability. Specifically, he
suffers from post-traumatic stress disorder, diabetes, and high blood pressure. He also suffers
from back problems. These conditions are permanent. His diabetes, combined with his high
blood pressure and back problems, substantially limits his ability to think, concentrate, and eat.
Mr. Page was under the regular care of a doctor for his diabetes and high blood pressure. He was
prescribed medication for his chronic serious health condition. This serious health condition
episodically caused him to be unable to work. He contends that Mr. Martin falsely regarded him
as a drunk.
Mr. Page worked for ASU as a dispatcher from August 2010 until May 2012. In the
preceding year, Mr. Page had worked more than 1,250 hours at ASU. From time-to-time, Mr.
Page requested accommodation from the defendants for his diabetes and high blood pressure in
the form of leave. Mr. Page alleges that defendants refused to engage in a good faith interactive
process, instead subjecting him to stricter scrutiny by secretly recording him and fabricating false
reasons for termination. Secretly tape recording Mr. Page was in violation of policy, and no
other officer was subjected to secret taping to Mr. Page’s knowledge.
In February 2012, while on duty, Mr. Page experienced a seizure and requested leave
under the FMLA as an accommodation under Section 504 of the Rehabilitation Act. Mr. Page
alleges that Mr. Martin slandered him by calling him overmedicated or drunk to coworkers
shortly after the seizure, thereby improperly disclosing personal medical information. Mr. Page
also alleges that, although he was performing his job satisfactorily, he was subjected to false and
escalating disciplinary actions and received a lowered performance evaluation by Mr. Martin.
Mr. Martin purportedly made disparaging statements about Mr. Page’s need for leave and his
disability. Mr. Page continued to suffer from diabetes and requested accommodation.
Mr. Page was terminated by defendants in May 2012. Mr. Page alleges he can perform
the essential functions of his job. According to Mr. Page, Ms. Winn knew that he was eligible
for FMLA but took the leave into consideration when terminating Mr. Page. Mr. Page alleges
that each defendant did not grant all of the leave he requested under the FMLA, that they failed
to give him notice of his rights under the FMLA, and that they retaliated against him. Mr. Page
contends that defendants terminated and retaliated against him in violation of the ADA, FMLA,
Rehabilitation Act, and ACRA. Mr. Page seeks injunctive and declaratory relief under Title II of
the ADA and the Rehabilitation Act. Mr. Page also seeks appropriate damages for lost wages,
lost fringe benefits, and liquidated damages.
When ruling on a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, the Court
“accept[s] as true all of the factual allegations contained in the complaint, and review[s] the
complaint to determine whether its allegations show that the pleader is entitled to relief.” Schaaf
v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008). The Court draws all reasonable
inferences from the complaint in favor of the nonmoving party. Crumpley–Patterson v. Trinity
Lutheran Hosp., 388 F.3d 588, 590 (8th Cir. 2004). A motion to dismiss should not be granted
merely because the complaint “does not state with precision all elements that give rise to a legal
basis for recovery.” Schmedding v. Tnemec Co., 187 F.3d 862, 864 (8th Cir. 1999). A complaint
need only contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Id. (quoting Fed. R. Civ. P. 8(a)). Specific facts are not required; the complaint simply
must “give the defendant fair notice of what the . . . claim is and the grounds upon which it
rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007)). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citations omitted).
Stated differently, the nonmoving party must “raise a right to relief above a speculative level.”
Schaaf, 517 F.3d at 549.
Defendants move to dismiss for failure to state a claim upon which relief may be granted,
contending that: (1) the claims against Mr. Martin and Ms. Winn in their official capacities for
violations for the ADA and Rehabilitation Act are redundant to the claims against ASU; (2) Title
II of the ADA does not apply to employment discrimination disputes; (3) even if Title II of the
ADA applies to employment discrimination disputes, sovereign immunity protects from suit
ASU and Mr. Martin and Ms. Winn in their official capacities; and (4) the law in the Eighth
Circuit should be altered such that individual capacity claims brought under the FMLA are not
cognizable and, therefore, Mr. Page’s claims against Mr. Martin and Ms. Winn should be
ADA And Rehabilitation Act Claims Against Mr. Martin And Ms.
Winn In Their Official Capacities
Mr. Page’s amended complaint states that Mr. Martin and Ms. Winn are sued only in
their individual capacities for alleged violations of the FMLA and retaliation under the ACRA
(Dkt. No. 6, at 1). Mr. Page also notes in the style of the case that Mr. Martin and Ms. Winn are
sued in their official capacities, apparently under Title II of the ADA and the Rehabilitation Act.
Defendants argue that the claims against Mr. Martin and Ms. Winn should be dismissed as
redundant to the claim against ASU. In Ex parte Young, 209 U.S. 123, 155-56 (1908), the
Supreme Court explained that, although a state or state entity may not be sued without its
consent under the Eleventh Amendment, state officials may be sued in their official capacities
for prospective injunctive relief when the officials allegedly are acting in violation of the
Constitution or federal law. Mo. Child Care Ass’n v. Cross, 294 F.3d 1034, 1037 (8th Cir.
2002). Based on this distinction, the Court declines to dismiss the claims against Mr. Martin and
Ms. Winn as redundant at this time.
Claims Under Title II Of The ADA
The ADA “forbids discrimination against persons with disabilities in three major areas of
public life: employment, which is covered by Title I of the statute; public services, programs,
and activities, which are the subject of Title II; and public accommodations, which are covered
by Title III.” Tennessee v. Lane, 541 U.S. 509, 516-17 (2004).
Title II of the ADA prohibits a public entity from discriminating against “qualified”
persons with disabilities in the provision or operation of public services, programs, or activities.
42 U.S.C. § 12132.
A “qualified” person is one “with a disability who, with or without
reasonable modifications to rules, policies, or practices, the removal of architectural,
communication, or transportation barriers, or the provision of auxiliary aids and services, meets
the essential eligibility requirements for the receipt of services or the participation in programs or
activities provided by a public entity.” Id. § 12131(2).
Mr. Page brings his ADA employment discrimination claims under Title II only—not
Title I or Title III. Defendants contend that Title II does not apply to employment discrimination
claims but concede there is a split in authority on this issue and acknowledge that the Eighth
Circuit has not yet considered it. This Court most recently followed the majority of courts in
rejecting Title II employment discrimination claims as a matter of law in Withers v. Arkansas
Department of Corrections, No. 5:12-cv-00123-KGB (E.D. Ark. Mar. 29, 2013). See Elwell v.
Oklahoma ex rel. Bd. of Regents of Univ. of Okla., 693 F.3d 1303, 1309-10 (10th Cir. 2012)
(holding “that Title I, not Title II, is the proper tool for pursuing employment discrimination
claims”); Zimmerman v. Or. Dep’t of Justice, 170 F.3d 1169, 1178 (9th Cir. 1999) (holding “that
Congress did not intend for Title II to apply to employment”); Menkowitz v. Pottstown Mem.
Med. Ctr., 154 F.3d 113 (3d Cir. 1998) (holding that “it is evident that Congress sought to
regulate disability discrimination in the area of employment exclusively through Title I”); Parker
v. Metro. Life Ins. Co., 121 F.3d 1006, 1014-15 (6th Cir. 1997) (holding that “the statutory
framework of the ADA expressly limits discrimination in employment practices to Title I of the
ADA”). These courts have based their decisions on the text of Title II, the structure of the ADA,
and dicta in Supreme Court decisions.
In support of his position that Title II permits an employment discrimination claim, Mr.
Page, like the plaintiff in Withers, relies on the Eleventh Circuit’s decision in Bledsoe v. Palm
Beach County Soil & Water Conservation District, 133 F.3d 816 (11th Cir. 1998). The court in
Bledsoe held that Title II’s implementing regulations, which provide in pertinent part that “[n]o
qualified individual . . . shall, on the basis of disability, be subjected to discrimination in
employment,” are subject to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). Id. at 822-23 (quoting 28 C.F.R. § 35.140). The Bledsoe
court also noted that the “[e]xtensive legislative commentary regarding the applicability of Title
II to employment discrimination . . . belie[s] any contention that Title II does not apply to
employment actions.” Id. at 821. Specifically, the court found it “significant that Congress
intended Title II to work in the same manner as Section 504 of the Rehabilitation Act, because
Section 504 [is] . . . focused on employment discrimination . . . .” Id.
In the absence of controlling Eighth Circuit precedent, and consistent with this Court’s
decision in Withers, the Court concludes that Mr. Page’s claims are not cognizable under Title II
of the ADA. For this reason, the Court dismisses Mr. Page’s claims under Title II of the ADA
for failure to state a claim upon which relief may be granted. Defendants also contend that, even
if Title II applies to employment disputes, the state entity defendants are entitled to sovereign
immunity. Because the Court finds that Title II does not apply to employment disputes, the
Court declines to address this argument.
Claims Under The FMLA
Mr. Martin and Ms. Winn request that this Court alter the law in the Eighth Circuit to
state that FMLA claims are not cognizable against individual capacity defendants. This Court
declines to do so. In Darby v. Bratch, the Eighth Circuit held that, based on the plain language
of the statute, the FMLA imposes individual liability on public officials acting in supervisory
capacities. 287 F.3d 673, 681 (8th Cir. 2002)(citing 29 U.S.C. § 2611(4)(A)(ii)(I) (defining
“employer” as “any person who acts, directly or indirectly, in the interest of an employer to any
of the employees of such employer”)). The Eighth Circuit’s decision in Darby authorizes
individual capacity suits under the FMLA. Accordingly, this Court denies Mr. Martin and Ms.
Winn’s motion to dismiss Mr. Page’s FMLA claims.
For these reasons, defendants’ motion to dismiss Mr. Page’s amended complaint is
granted in part and denied in part (Dkt. No. 9). This Court declines to dismiss Mr. Page’s claims
against Mr. Martin and Ms. Winn in their official capacities as redundant to his claims against
ASU. This Court dismisses as a matter of law Mr. Page’s employment discrimination claims
purportedly brought under Title II of the ADA. This Court denies Mr. Martin and Ms. Winn’s
motion to dismiss Mr. Page’s FMLA claims against them in their individual capacities.
SO ORDERED this 14th day of February, 2014.
KRISTINE G. BAKER
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?