Lankford v. The State of Delaware,
MEMORANDUM re 7 MOTION to Dismiss First Amended Complaint. Signed by Judge Richard G. Andrews on 6/13/2017. (nms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Civil Action No. 16-993-RGA
DEBBIE SHORT, in her Official Capacity
only as a State Human
Plaintiff filed a two-count First Amended Complaint against Defendant Debbie Short, "in
her [o]fficial [c]apacity only as a State Human Resources Official." (D.I. 5). In Count I, Plaintiff
claims violations of 42 U.S.C. § 1983 and discrimination in violation of the Americans with
Disabilities Act ("ADA"). (Id. at 5). In Count II, Plaintiff claims violations of 42 U.S.C. § 1983
and retaliation in violation of the ADA. (Id. at 6). Plaintiff seeks "[p]rospective [i]njunctive
[r]eliefreinstating Plaintiff as a Family Court employee in comparable position and at pay
commensurate with the pay grade at which she was most recently employed." (Id. at 7). Plaintiff
seeks, in the alternative to reinstatement, "front-pay and front-benefits." (Id.)
Pending before the Court is Defendant's Motion to Dismiss the First Amended
Complaint. (D.I. 7). Defendant seeks dismissal of all claims in Counts I and II for lack of subject
matter jurisdiction under Federal Rule of Civil Procedure 12(b)( 1) and for failure to state a claim
under Federal Rule of Civil Procedure 12(b )(6). (Id. at 2-3). For the reasons set forth below,
Defendant's Motion is GRANTED. Count I and Count II are DISMISSED.
In October 1989, Plaintiff began working for the Family Court in and for Sussex County,
Delaware. (D.I. 5 at if 5). "At all relevant times, Plaintiff suffered from mild cerebral palsy,
panic disorder, general anxiety disorder, and major depressive disorder." (Id. at if 6). In early
2012, Defendant and other management-level employees became aware of Plaintiff's medical
conditions. (Id. at if 11). On February 8, 2012, Defendant "instructed Plaintiff to take short-term
disability leave," and Plaintiff complied. (Id. at iii! 13-15). In July 2012, Plaintiff returned to
work with a physician's note clearing her to work on a half-day basis. (Id. at iii! 17-18). On
August 3, 2012, Plaintiff provided Defendant with another physician's note clearing Plaintiff to
work a reduced schedule for sixty days. (Id. at iii! 21-22). On the same day, Defendant sent
Plaintiffhome from work and Plaintiff was not allowed to return to work. (Id. atifif 23-24). On
August 7, 2012, Defendant "informed Plaintiff she was terminated." (Id. at if 25). Defendant
"instructed Plaintiff to take long-term disability until Plaintiff was eligible for her service
pension." (Id. at if 26).
On November 1, 2012, Plaintiff filed a charge for ADA discrimination and retaliation
with the Equal Employment Opportunity Commission ("EEOC"). (Id. at if 29). "[T]he Family
Court claimed that it would be an undue hardship for it to accommodate Plaintiffs half-day
schedule." (Id. at if 30). "The EEOC concluded that Defendant discriminated and retaliated
against Plaintiff in violation of the [ADA]." (Id. at if 35). The EEOC provided Plaintiff a Right
to Sue Notice dated August 1, 2016. (Id. at if 36).
STANDARD OF REVIEW
Rule 12(b)(l) of the Federal Rules of Civil Procedure permits the dismissal of an action
for "lack of subject matter jurisdiction." A Rule 12(b)(l) motion may be treated as either a facial
or factual challenge to the court's subject matter jurisdiction. Constitution Party v. Aichele, 757
F.3d 347, 357-58 (3d Cir. 2014). "In reviewing a facial attack, 'the court must only consider the
allegations of the complaint and documents referenced therein and attached thereto, in the light
most favorable to the plaintiff."' Id. at 358 (quoting In re Schering Plough Corp., 678 F.3d 235,
243 (3d Cir. 2012)). In reviewing a factual attack, the court may consider evidence outside the
pleadings. Mortensen v. First Fed. Sav. & Loan Ass 'n, 549 F.2d 884, 891 (3d Cir. 1977).
Defendant argues Counts I and II should be dismissed for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(l). (D.I. 7 at iJ 6). Since Defendant
relies solely on the pleadings, this is a facial challenge to the court's subject matter jurisdiction,
and only "the allegations of the complaint and documents referenced therein and attached
thereto, in the light most favorable to [Plaintiff]" may be considered. Gould Elecs., Inc. v. United
States, 220 F.3d 169, 176 (3d Cir. 2000).
Pursuant to 28 U.S.C. § 1331, "district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States." Plaintiff argues the
Court has jurisdiction over her claims because the claims arise from violations of the ADA and §
1983, whereas Defendant argues that Plaintiffs claims are barred by the Eleventh Amendment.
"Plaintiff sues [Defendant] in her official capacity only, tantamount to a suit against the
State of Delaware itself, pursuant to Ex parte Young, ... wherein the [Supreme Court] created
the so-called 'legal fiction' that States may be sued through their officials acting in their
capacity." (D.I. 8 at~ 11; see D.I. 5 at~ 2). As noted by Defendant, the "Eleventh Amendment
bars all suits in law or equity against a state in federal court." (D.I. 7 at~ 9). "[T]here are only
three narrowly circumscribed exceptions to Eleventh Amendment immunity: (1) abrogation by
Act of Congress, (2) waiver by state consent to suit; and (3) suits against individual state officials
for prospective relief to remedy an ongoing violation of federal law." MA. ex rel E.S. v. State-
Operated Sch. Dist., 344 F.3d 335, 345 (3d Cir. 2003).
Plaintiff relies solely on the third exception. Plaintiff contends Defendant, in her official
capacity, deprived Plaintiff of her constitutional right to "reasonable accommodations," and
Defendant discriminated and retaliated against Plaintiff "in lieu of inquiring into reasonable
accommodations." (D.I. 8 at ii 4). Plaintiff argues the third Eleventh Amendment immunity
exception applies to Defendant because Defendant is being sued in her official capacity for
prospective injunctive relief to remedy the ongoing violations. (Id. at ii 11).
Defendant argues the Court lacks subject matter jurisdiction because the Eleventh
Amendment immunity bars Plaintiff's ADA claims because there is no ongoing violation of
federal law which can be remedied by prospective relief. (D.I. 9 at iii! 8-9). Defendant argues
there are no facts to suggest there is an ongoing violation and "[a]ny alleged violation ended with
her last day of employment with the state of Delaware." (Id. at if 12). Defendant argues Plaintiff
"cannot meet the threshold test for Ex Parte Young to permit suit against Defendant in her
official capacity." (Id.).
Under the doctrine of Ex Parte Young, prospective relief against a state official in her
official capacity to prevent future federal constitutional or federal statutory violations is not
barred by the Eleventh Amendment. 209 U.S. 123 (1908). To determine whether a plaintiff has
alleged a proper Ex Parte Young claim, the federal court "will need to conduct a straightforward
inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief
properly characterized as prospective." Verizon Md. Inc. v. Pub. Serv. Comm 'n of Md., 535 U.S.
635, 636 (2002) (quoting Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 296 (1997)
(O'Connor, J., concurring)) (emphasis added). Plaintiffs claims of ADA violations do not
involve ongoing violations. The ADA violations ended when Plaintiff was terminated.
Plaintiff's unemployment is a consequence of Defendant's failure to abide by the law.
"Nonetheless, it is still a consequence of the violation and not a continuing violation." Republic
ofPara. v. Allen, 949 F. Supp. 1269, 1273 (E.D. Va. 1996). There is no ongoing violation of the
ADA. Therefore, the third Eleventh Amendment immunity exception does not apply to
Plaintiff's ADA claims.
As stated under § 1983, "Every person who, under color of any statute ... subjects, or
causes to be subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law ... " 42 U.S.C. § 1983. Plaintiffs§
1983 claims are dependent on the violations of the ADA. Since there is no ongoing violation of
the ADA, there is no ongoing violation of§ 1983. Plaintiff's Count I and Count II, both of
which claim violations of the ADA and § 1983, are barred by the Eleventh Amendment. "[T]he
Eleventh Amendment is a jurisdictional bar which deprives federal courts of subject matter
jurisdiction." Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 693 n.2 (3d Cir. 1996) (citing
Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98-100 (1984)). The Court does
not have subject matter jurisdiction over Plaintiffs Counts I and II.
For the aforementioned reasons, Defendant's Motion to Dismiss Plaintiff's First
Amended Complaint (D.I. 7) is GRANTED. All claims in Count I and Count II are
A separate order will be entered.
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