HOLLIDAY v. TRUSTEES OF INDIANA UNIVERSITY

Filing 35

ORDER - granting 26 Partial Motion to Dismiss. The following claims are dismissed with prejudice: (1) disability discrimination, retaliation, and failure to accommodate under the ADA against Indiana University (Counts I, II, and III); (2) dama ges for disability discrimination, retaliation, and failure to accommodate under the ADA against the individual defendants (Counts I, II, and III); (3) disability discrimination, retaliation, and failure to accommodate under Section 504 of the Re habilitation Act against the individual defendants (Counts I, II, and III); (4) disability discrimination, retaliation, and failure to accommodate under the Indiana Civil Rights Law (Ind. Code § 22-9-1, et seq.) against all Defendants (Counts I, II, and III); (5) age discrimination under Indiana's Age Discrimination Act against all Defendants (Count IV); and (6) intentional infliction of emotional distress against all Defendants (Count V). The claims remaining for trial are (1) Ho lliday's claims against the individual defendants for prospective injunctive relief under the ADA, and (2) her claim against Indiana University under the Rehabilitation Act. (See Entry.) Signed by Judge Tanya Walton Pratt on 6/18/2018. (NAD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
CHRISTI HOLLIDAY,

)
)
Plaintiff,
)
)
v.
) Case No. 1:17-cv-04748-TWP-MJD
)
THE TRUSTEES OF INDIANA UNIVERSITY; )
MICHAEL McROBBIE, in his official capacity of )
Indiana University President; and STEVE
)
MARTIN, in his official capacity of Associate Vice )
President for Research Administration,
)
)
Defendants.
)
ORDER GRANTING DEFENDANTS’ PARTIAL MOTION TO DISMISS
This matter is before the Court on Defendants’ The Trustees of Indiana University
(“Indiana University”), Michael McRobbie, and Steve Martin (collectively, “Defendants”) Partial
Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (Filing No.
26). Plaintiff, Christi Holliday’s (“Holliday”) alleges in her Amended Complaint that she was
discriminated against and terminated from her employment at Indiana University, because of her
disability, her age, and her request for leave under the Family Medical Leave Act (“FMLA”).
Defendant’s deny the allegations and move for dismissal for most of Holliday’s claims. For the
reasons stated below, the partial motion to dismiss is granted.
I. BACKGROUND
The following facts are not necessarily objectively true, but as required when reviewing a
motion to dismiss, the Court accepts as true all factual allegations in the Complaint and draws all
inferences in favor of Holliday as the non-moving party. See Bielanski v. County of Kane, 550
F.3d 632, 633 (7th Cir. 2008). At the time of her termination from Indiana University, Holliday

was fifty-eight years of age and had served as faculty for eight (8) years. (Filing No. 13 at 2.) She
was a trusted and highly successful professional, holding advanced degrees. Id. Holliday is
visually impaired and her disability requires an accommodation in order for her to fully participate
in the workplace. (Filing No. 13 at 4.) Defendants were aware of Holliday’s disabilities and the
necessary accommodations through medical documentation provided by Holliday and her doctors.
Id. at 5.
After transferring to Indiana University’s Bloomington campus, Holliday requested a
number of accommodations to address her visual disability, however her requests were ignored.
Id.

On October 20, 2015, she informed her supervisor that she needed bilateral corneal

transplants, which would require time off from work. Indiana University responded to her
multiple requests for accommodations and medical leave by fabricating a series of alleged
performance issues and engaging in a series of discriminatory and unconscionable acts leading to
her termination. Id. Holliday filed this action against Indiana University, and Michael McRobbie
(“McRobbie”) in his official capacity as Indiana University President, and Steve Martin (“Martin”)
in his official capacity as Associate Vice President for Research Administration, alleging that the
Defendants violated Titles I and V of the Americans with Disabilities Act (“ADA”), as amended,
42 U.S.C. §§ 12101 et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794 (the
“Rehabilitation Act”), the Indiana Civil Rights Statute, I.C. §§ 22-9-5 et seq., and The Indiana Age
Discrimination Act, I.C. §§ 22-9-2-1 et seq.. She alleges the Defendants discriminated against her
due to her disability and age, by failing to accommodate her disability, by retaliating against her
for engaging in protected activity, and by intentionally inflicting emotional distress. In addition to
monetary damages and wages, Holliday asks the Court to reinstate her employment and enjoin
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Defendants from engaging in further violations of the ADA, The Rehabilitation Act, Indiana’s
Civil Rights Statute, and Indiana’s Age Discrimination Statute.
The Defendants deny that they discriminated against Holliday on the basis of her disability
or her age, and contend that they did not retaliate against her because of her disability, age, or her
request for Family Medical Leave Act (“FMLA”) leave. They further deny that they failed to
accommodate Holliday’s disability, and did not intentionally inflict emotional distress. Rather,
Defendants contend Holliday was terminated due to an extensive history of poor performance.
Defendants’ filed their Partial Motion to Dismiss on the basis that Holliday’s claims are subject to
sovereign immunity, that some of her claims should be dismissed as a matter of law, and that she
failed to comply with the notice provisions required under the Indiana Tort Claims Act. (Filing
No. 26.)
II.

LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) allows a defendant to move to dismiss a complaint
that has failed to “state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
When deciding a motion to dismiss under Rule 12(b)(6), the court accepts as true all factual
allegations in the complaint and draws all inferences in favor of the plaintiff. Bielanski, 550 F.3d
at 633. However, courts “are not obliged to accept as true legal conclusions or unsupported
conclusions of fact.” Hickey v. O’Bannon, 287 F.3d 656, 658 (7th Cir. 2002).
The complaint must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). In Bell Atlantic Corp. v. Twombly, the
United States Supreme Court explained that the complaint must allege facts that are “enough to
raise a right to relief above the speculative level.” 550 U.S. 544, 555 (2007). Although “detailed
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factual allegations” are not required, mere “labels,” “conclusions,” or “formulaic recitation[s] of
the elements of a cause of action” are insufficient. Id.; see also Bissessur v. Ind. Univ. Bd. of Trs.,
581 F.3d 599, 603 (7th Cir. 2009) (“it is not enough to give a threadbare recitation of the elements
of a claim without factual support”). The allegations must “give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555. Stated
differently, the complaint must include “enough facts to state a claim to relief that is plausible on
its face.” Hecker v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009) (citation and quotation marks
omitted). To be facially plausible, the complaint must allow “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) (citing Twombly, 550 U.S. at 556).
III. DISCUSSION
Holliday has not responded to the Defendants’ Partial Motion to Dismiss which argues that
some of her claims are barred by the doctrine of sovereign immunity, some of her claims should
be dismissed as a matter of law, and that some claims should be dismissed because she failed to
comply with the notice provisions required under the Indiana Tort Claims Act therefore, she has
conceded these points. See Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) (“Failure
to respond to an argument . . . results in waiver,” and “silence leaves us to conclude” a concession);
Myers v. Thoman, 2010 U.S. Dist. LEXIS 107502, at *11 (S.D. Ind. Oct. 6, 2010) (“The Seventh
Circuit has clearly held that a party who fails to respond to points made . . . concedes those
points.”); Cintora v. Downey, 2010 U.S. Dist. LEXIS 19763, at *12 (C.D. Ill. Mar. 4, 2010) (“The
general rule in the Seventh Circuit is that a party’s failure to respond to an opposing party’s
argument implies concession.”); Sequel Capital, LLC v. Pearson, 2010 U.S. Dist. LEXIS 109087,
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at *22 (N.D. Ill. Oct. 12, 2010) (same); Thomas v. Am. Family Mut. Ins. Co., 2008 U.S. Dist.
LEXIS 92440, at *13–14 (N.D. Ind. Nov. 13, 2008) (same). Even if Holliday had addressed the
Defendants’ contention, the Court finds that the majority of Holliday’s claims fail on the merits.
Her claims against Indiana University fail because Indiana University has not waived
immunity to Holliday’s claims under the ADA. Indiana University is an instrumentality of the
State of Indiana for purposes of the Eleventh Amendment and thus has sovereign immunity with
regards to any claims brought under the ADA. “A state may claim immunity from suit in federal
court and must be dismissed from the litigation unless” the state has consented to suit or its
immunity has otherwise been abrogated by the United States Congress. Kroll v. Bd. of Trustees
of Univ. of Ill., 934 F.2d 904, 907 (7th Cir. 1991). “[The Eleventh Amendment’s] jurisdictional
bar applies regardless of the nature of the relief sought.” Tyler v. Trustees of Purdue Univ., 834
F. Supp. 2d 830, 845 (N.D. Ind. 2011) (quoting Gleason v. Bd. Of Educ. of City of Chi., 792 F.2d
76, 79 (7th Cir. 1986)); Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 58 (1996) (“But we have often
made it clear that the relief sought by a plaintiff suing a State is irrelevant to the question whether
the suit is barred by the Eleventh Amendment.”).
In addition, as argued by the Defendants, Holliday’s claims for damages related to alleged
disability discrimination, retaliation, and failure to accommodate against the individual defendants
under the ADA fail as a matter of law because sovereign immunity also extends to individuals
“being sued in their ‘official capacities.’” Shannon v. Bepko, 684 F. Supp. 1465, 1473 (S.D. Ind.
1988). (Filing No. 27 at 4.)
Holliday’s disability discrimination, retaliation, failure to accommodate, and disability
discrimination claims, pled under Indiana Civil Rights Law, fail as a matter of law because she
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must first file a complaint with the Indiana Civil Rights Commission. Ind. Code § 22-9-1-6. Her
age discrimination claim fails because Indiana University is not an “employer” under Indiana’s
Age Discrimination Act.

See Ind. Code § 22-9-2-1. State employers, including Indiana

University, are “‘government entities’ ‘subject to’ the federal ADEA. … [and] … they are not
statutory ‘employers’ under section 1 of Indiana’s Age Discrimination Act”. Montgomery v. Bd.
of Trustees of Purdue Univ., 849 N.E.2d 1120, 1127.
Holliday asserts that Defendants receive federal assistance and thus are covered entities
under the Rehabilitation Act. However, individuals do not receive federal aid and thus cannot be
liable under the Rehabilitation Act.” Novak v. Bd of Trustees of S. Illinois Univ., No. 12-CV-7JPG, 2012 WL 5077649, at *3 (S.D. Ill. Oct. 18, 2012). See also Dent v. City of Chi., 2003 WL
21801163, at * 1 (N.D.Ill. Aug.1, 2003) (“[T]he law is well-settled that there is no individual
liability under ... the Rehabilitation Act....”). Therefore, this claim must be dismissed with respect
to Martin and McRobbie.
Finally, Holliday’s intentional infliction of emotional distress claim fails because Holliday
has not alleged that she complied with the 180 days’ notice requirement. A state law claim of
intentional infliction of emotional distress is subject to the Indiana Tort Claims Act (“ITCA”).
Compliance with notice provisions of ITCA is a procedural precedent that the plaintiff must prove
and which the trial court must determine before trial. Indiana Dep’t of Highways v. Hughes, 575
N.E.2d 676, 678 (Ind. Ct. App. 1991). Accordingly, this claim must be dismissed.
IV. CONCLUSION
For the reasons set forth above, Defendants’ Partial Motion to Dismiss (Filing No. 26) is
GRANTED. The following claims are dismissed with prejudice: (1) disability discrimination,
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retaliation, and failure to accommodate under the ADA against Indiana University (Counts I, II,
and III); (2) damages for disability discrimination, retaliation, and failure to accommodate under
the ADA against the individual defendants (Counts I, II, and III); (3) disability discrimination,
retaliation, and failure to accommodate under Section 504 of the Rehabilitation Act against the
individual defendants (Counts I, II, and III); (4) disability discrimination, retaliation, and failure
to accommodate under the Indiana Civil Rights Law (Ind. Code § 22-9-1, et seq.) against all
Defendants (Counts I, II, and III); (5) age discrimination under Indiana’s Age Discrimination Act
against all Defendants (Count IV); and (6) intentional infliction of emotional distress against all
Defendants (Count V).
The claims remaining for trial are (1) Holliday’s claims against the individual defendants
for prospective injunctive relief under the ADA, and (2) her claim against Indiana University under
the Rehabilitation Act.
SO ORDERED.
Date: 6/18/2018

DISTRIBUTION:
Michael Shaun Dalrymple
[e-mail]
Erin Thornton Escoffery
TAFT STETTINIUS & HOLLISTER LLP
[e-mail]
Michael C. Terrell
TAFT STETTINIUS & HOLLISTER LLP
[e-mail]
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