Davis v. Kentucky Community and Technical College System

Filing 11

OPINION & ORDER: (1) GRANTING dft's 4 PARTIAL MOTION to Dismiss; (2) pla's claims for damages, retaliation & injunctive relief are DISMISSED; (3) all remaining claims are REMANDED to the Fayette Circuit Court; (4) this case is STRICKEN from the docket. Signed by Judge Karen K. Caldwell on 4/18/18.(KJR)cc: COR, Fayette Circuit Court

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
AT LEXINGTON
ROBIN DAVIS,

CIVIL NO. 5:17–CV–344–KKC

Plaintiff,
v.

OPINION AND ORDER

KENTUCKY COMMUNITY AND
TECHNICAL COLLEGE SYSTEM d/b/a
BLUEGRASS COMMUNITY AND
TECHNICAL COLLEGE,
Defendant.

*** *** ***
This matter is before the Court on the Motion for Partial Dismissal submitted by
Defendant Kentucky Community and Technical College System (“KCTCS”) d/b/a/ Bluegrass
Community and Technical College (“BCTC”). For the reasons stated below, the Court grants
Defendant’s partial motion to dismiss Plaintiff’s claims brought under the Americans with
Disabilities Act and Family and Medical Leave Act and remands all remaining claims to the
Fayette Circuit Court.
I. Background
Defendant KCTCS is a statewide network of colleges, made up of over seventy campuses.
Compl. ¶ 2, ECF No. 1-2. Plaintiff Robin Davis, a resident of London, Kentucky, has been
employed as a statistics teacher for KCTCS at its BCTC campus since 2000. Compl. ¶ 3. She
is disabled, suffering from Panic and Anxiety Disorder. Compl. ¶ 9. After being diagnosed
with cancer in 2009, Davis’s Panic and Anxiety Disorder symptoms intensified and BCTC
ultimately accommodated her by creating online courses so that her students would not have
their classes canceled. Compl. ¶ 23. In December 2014, Davis requested that she be permitted
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to teach exclusively online, but her request was denied by the Dean of Academics. Compl. ¶¶
33–34. Davis submitted a Family and Medical Leave Act (“FMLA”) request in Fall 2015 which
the college granted. Compl. ¶ 36–38. For the Spring 2016 semester, Davis again used FMLA
accommodations, but also submitted Americans with Disabilities Act (“ADA”) paperwork to
the college and discussed her need for further accommodation with BCTC administrators.
Compl. ¶¶ 39–44. However, they could not come to an agreement on further accommodations.
Compl. ¶¶ 45–48. Davis again submitted FMLA paperwork for the Fall 2016 semester, which
the college accepted. Compl. ¶ 54. In August 2016, Davis filed a Charge of Discrimination
with the Equal Employment Opportunity Commission (“EEOC) complaining that BCTC
failed to provide her with necessary accommodations. Compl. ¶ 55. In October 2016, however,
Davis was demoted to a lecturer position, which included a reduction in pay. Compl. ¶ 56. In
summer 2017, Davis was informed that she would not be able to teach summer classes, as
she had previously done, because she was unable to be physically present on campus to serve
as a proctor. Compl. ¶¶ 64–69. Instead, because of her FMLA use in the spring semester, she
would be required to teach online summer classes for no additional pay. Compl. ¶ 70. Shortly
after the EEOC issued Davis a Notice of Right to Sue on June 1, 2017, BCTC informed her
that she would not be permitted to teach online classes as a form of accommodation and that
she would be terminated if she did not report to campus to teach in-person classes during the
fall 2017 semester. Compl. ¶¶ 73–75.
Davis commenced this action in Fayette Circuit Court on August 8, 2017 asserting a
number of claims. First, she claims that KCTCS failed to accommodate her disability in
violation of the Kentucky Civil Rights Act, Ky. Rev. Stat. Ch. 344, et seq., and the Americans
with Disabilities Act, 42 U.S.C. §§ 12101, et seq. Second, she claims that KCTCS violated the
Family and Medical Leave Act, 29 U.S.C. § 2615, by interfering with her use of FMLA leave.
Third, she claims that, in violation of the Kentucky Wage and Hour Act, Ky. Rev. Stat. §
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337.060, KCTCS illegally withheld her pay. And fourth, Davis asserts that KCTCS violated
the anti-retaliation provisions of the Kentucky Civil Rights Act, Ky. Rev. Stat. § 344.280, the
ADA, 42 U.S.C. § 12203, the FMLA, 29 U.S.C. § 2615, and the Kentucky Wage and Hour Act,
Ky Rev. Stat. § 337.990. She also seeks injunctive relief under the ADA, FMLA, and Kentucky
Civil Rights Act, and punitive damages. KCTCS removed this matter to this Court on August
21, 2017, (DE 1), and subsequently filed a motion for partial dismissal based on sovereign
and governmental immunity, (DE 4). Davis has filed a response in opposition and KCTCS
has filed a reply. Accordingly, this matter is now ripe for review.
II. Standard of Review
A motion to dismiss for lack of subject-matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1) may attack the claim of jurisdiction on its face or it can attack the factual
basis for jurisdiction. Golden v. Gorno Bros., Inc., 410 F.3d 879, 881 (6th Cir. 2005). A facial
attack on jurisdiction “questions merely the sufficiency of the pleading” and therefore this
Court must “take[] the allegations in the complaint as true, which is a similar safeguard
employed under 12(b)(6) motions to dismiss.” Gentek Bldg. Products, Inc. v. SherwinWilliams Co., 491 F.3d 320, 330 (6th Cir. 2007) (citing Ohio Nat’l Life Ins. Co. v. United
States, 922 F.2d 320, 325 (6th Cir. 1990)).1 The burden of proving jurisdiction in order to
survive a motion to dismiss lies on the plaintiff. Nichols v. Muskingum College, 318 F.3d 674,
677 (6th Cir. 2003).
III. Analysis
KCTCS argues that Davis’s claims based on the ADA and FMLA are barred by Eleventh
Amendment immunity. While KCTCS concedes that the Commonwealth has waived its

In contrast, when a defendant makes a factual attack on jurisdiction, the presumption of truthfulness does not
apply and the court “must weigh the conflicting evidence to arrive at the factual predicate that subject-matter
does or does not exist.” Id. (citing Ohio Nat’l Life Ins. Co., 922 F.2d at 325).
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immunity under the Kentucky Civil Rights Act, it contends that governmental immunity
bars Davis’s Kentucky Wage and Hour Act claims. Finally, KCTCS argues that Davis’s claim
for punitive damages must also be dismissed because her only actionable claim arises under
the Kentucky Civil Rights Act, which does not authorize recovery of punitive damages. These
arguments are addressed below.
A. ADA and FMLA
1. Money Damages
The Eleventh Amendment to the United States Constitution provides: “The Judicial
power of the United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by Citizens of another State, or
by Citizens or Subjects of any Foreign State.” The Supreme Court has clarified that sovereign
immunity “is demarcated not by the text of the Amendment alone but by fundamental
postulates implicit in the constitutional design.” Alden v. Maine, 527 U.S. 706, 729 (1999). It
is well settled that sovereign immunity extends to suits brought by a citizen against the State
in which he or she resides. See Hans v. Louisiana, 134 U.S. 1 (1890). Eleventh Amendment
immunity shields both states and their agencies from suit. See Alabama v. Pugh, 438 U.S.
781, 782 (1978) (holding that claims against the Alabama Board of Corrections, a state
agency, were barred by the Eleventh Amendment).
In her complaint, Davis alleges that KCTCS is a non-profit corporation rather than an
agency of the state. Compl. ¶ 2. This assertion is contradicted by state statutes of which this
Court is required to take judicial notice. See Godboldo v. Cty. of Wayne, 686 F. App’x 335, 340
(6th Cir. 2017) (“As we have previously held, we ‘are required to take judicial notice of the
statute and case law of each of the states.’”) (quoting Schultz v. Tecumseh Prods., 310 F.2d
426, 433 (6th Cir. 1962)). KCTCS was created by the Kentucky General Assembly in 1997,
Ky Rev. Stat. § 164.580(1), and as such is an agency of the state entitled to Eleventh
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Amendment immunity, see Martin v. Univ. of Louisville, 541 F.2d 1171, 1174 (6th Cir. 1976)
(finding the University of Louisville was a state institution for Eleventh Amendment
purposes).
In her response brief, Davis appears to concede that KCTCS is an agency of the state
protected by Eleventh Amendment immunity. She instead argues that the Commonwealth
has waived such immunity with regard to ADA and FMLA claims brought by KCTCS
employees.2 Waiver of a state’s Eleventh Amendment sovereign immunity protection may
only be found where it is “stated ‘by the most express language or by such overwhelming
implications from the text as (will) leave no room for any other reasonable construction.’”
Edelman v. Jordan, 415 U.S. 651, 675 (1974) (quoting Murray v. Wilson Distilling Co., 213
U.S. 151, 171 (1909)).
Davis contends that KCTCS has waived or forfeited its immunity through its written
policies and procedures which, she claims, constituted a contract with its employees.3 With
regard to compliance with the ADA, KCTCS states “[i]t is a policy of the KCTCS to comply
with the Americans With Disabilities Act.” KCTCS Admin. Policies and Procedures 3.1.1,
ECF No. 9-3, at 20. Similarly, KCTCS policies also state that “KCTCS provides eligible
employees with unpaid, job-protected leave for certain conditions in accordance with the
Family and Medical Leave Act of 1993 (as amended in 2008).” Id. 2.14.2.2, ECF No. 9-3, at
12; see also id. 2.14.1, ECF No. 9-3, at 7 (“When requesting approval for an absence . . .

Davis does not contend that Congress has abrogated Eleventh Amendment immunity for her claims. Nor could
she, as the Supreme Court has found that immunity has not been abrogated by either statute. See Bd. of Trs. of
Univ. of Ala. V. Garrett, 531 U.S. 356, 374 (2001) (finding sovereign immunity not abrogated for Title I of the
ADA); Coleman v. Ct. of App. of Md., 566 U.S. 30, 44 (2012) (finding sovereign immunity not abrogated for FMLA’s
self-care provisions).
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In her response brief, Davis primarily uses the terminology of forfeiture. As the Supreme Court has explained:
“Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right,
waiver is the ‘intentional relinquishment or abandonment of a known right.’” United States v. Olano, 507 U.S.
725, 733 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). Davis does not contend that KCTCS failed to timely
assert its immunity; instead, she claims that KCTCS abandoned its sovereign immunity through its personnel
policies. This is a properly described as a claim of waiver, not forfeiture.
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employees and supervisors shall contact and collaborate with the human resources staff to
explore whether or not the absence qualifies for Family Medical Leave (FML.) . . . . If the
absence does qualify as FML, it shall be subject to the provisions of that policy and the Family
Medical Leave Act.”). Davis also claims that communications by KCTCS administrators
further indicated their waiver of immunity through their communications with her. Human
Resources Director stated in emails to Davis that her “condition is ongoing and chronic and
limits a major life activity, which implicates the ADA,” ECF No. 9-4, and, in denying her
FMLA protections for the summer course requirement, that “FML only applies to the
academic year when you are on assignment,” ECF No. 9-5.
The personnel policies and communications cited by Davis are insufficient to waive
Eleventh Amendment immunity. Whether personnel policies can waive Eleventh
Amendment immunity appears to be a question of first impression in this circuit. Two federal
courts have addressed the question, both finding that personnel policies did not constitute
waiver. In Thompson v. Regents of Univ. of Cal., 206 F. App’x 714, (9th Cir. 2006), the Ninth
Circuit found that language in the Regents’ Personnel Policies for Staff Members which
stated that “employees ‘shall be subject to all [Fair Labor Standards Act] provisions’ . . . falls
short of the express surrender of sovereignty required for a waiver of Eleventh Amendment
immunity.” Id. at 715. Similarly, the Middle District of Georgia has held that a statement in
a “personnel manual providing that Georgia is subject to the ADA is not equivalent to
Georgia's consent to be sued in federal court for violations of the ADA.” Gary v. Ga. Dep’t of
Human Res., 323 F, Supp. 2d 1336, 1372 (M.D. Ga. 2004). The Court agrees with these
holdings. The personnel policies and communications cited by Davis state only that KCTCS
will comply with the ADA and FMLA. There is no express language regarding waiver and
merely acknowledging compliance with a law, especially when such compliance may be

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compelled through prospective injunctive relief, does not create an overwhelming implication
of waiver.
Davis primarily relies on the Kentucky’s Supreme Court decision in Furtula v. Univ. of
Ky., 438 S.W.3d 303 (Ky. 2014), to support of her waiver argument. That decision, however,
dealt with governmental immunity under Kentucky state law, not Eleventh Amendment
sovereign immunity. It is therefore inapplicable to Davis’s ADA and FMLA claims. Even
assuming that the substance of Davis’s argument is correct and KCTCS’s policies constituted
an implied contract, the Court would still not find waiver. In Fla. Dep’t of Health and
Rehabilitative Servs. v. Fla. Nursing Home Ass’n, 450 U.S. 147 (1981), the Supreme Court
overturned a Fifth Circuit decision finding waiver based on an agencies “contractual duty to
adhere to federal statutory requirements,” Fla. Nursing Home Ass’n v. Page, 616 F.2d 1355,
1363 (5th Cir. 1980). The Supreme Court made clear that “agree[ing] explicitly to obey federal
law . . . can hardly be deemed an express waiver of Eleventh Amendment immunity.” Fla.
Dep’t of Health and Rehabilitative Servs., 450 U.S. at 150. The same reasoning applies here;
a policy or contractual obligation to comply with federal law, standing alone, is generally
insufficient to find waiver of Eleventh Amendment sovereign immunity.
Finally, Davis asks the Court to look to a pending action in the Western District of
Kentucky where KCTCS has answered and is participating in litigation regarding an FMLA
claim. See Anderson v. Ky. Cmty. & Tech. Coll. Sys., No. 3:17–CV–510–JHM. This argument
is misguided. Failure to invoke sovereign immunity in one litigation does not amount to
waiver of immunity in other cases. See City of South Pasadena v. Mineta, 284 F.3d 1154, 1158
(9th Cir. 2002) (holding waiver of sovereign immunity in a prior voluntarily dismissed action
did not carry over to its subsequent reincarnation); Biomedical Patent Mgmt. Corp. v. Cal.
Dep’t of Health Servs., 505 F.3d 1328, 1339 (Fed. Cir. 2007) (“[W]here a waiver of immunity

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occurs in an earlier action that is dismissed, or an entirely separate action, courts, including
our own, have held that the waiver does not extend to the separate lawsuit.”) (citing Tegic
Commc’ns Corp. v. Bd. of Regents of Univ. of Tex. Sys., 458 F.3d 1335, 1342 (Fed. Cir 2006));
Wagoner Cty. Rural Water Dist. No. 2 v. Grand River Dam Auth., 577 F.3d 1255 (10th Cir.
2009) (holding any waiver of immunity in a prior takings action did not carry over to a distinct
lawsuit “involving different issues and different litigants”); cf. Ku v. Tennessee, 322 F.3d 431,
435 (6th Cir. 2003) (“appearing without objection and defending on the merits in a case over
which the district court otherwise has original jurisdiction is a form of voluntary invocation
of the federal court's jurisdiction that is sufficient to a waive a State's defense of Eleventh
Amendment immunity” in that particular case).
2. Injunctive relief
Davis’s complaint also seeks injunctive relief requiring KCTCS to follow the FMLA’s
proscriptions on KCTCS’s alleged unlawful conduct and to engage in the “interactive process”
for complying with the ADA. Compl. ¶ 135. She also seeks injunctive relief in the form of
reinstatement, promotion, grant of her distance learning request, and restoration of benefits.
Compl. ¶ 136.
Even when Eleventh Amendment immunity bars money damages claims, plaintiffs may
seek prospective injunctive relief against individuals state officials in their official capacities.
See Ex parte Young, 209 U.S. 123 (1908). The Sixth Circuit has held that plaintiffs may invoke
Ex parte Young to seek prospective injunctive relief under the ADA. Whitfield v. Tennessee,
639 F.3d 253, 257 (6th Cir. 2011). The FMLA expressly permits claims for injunctive relief
against state officials. Crugher v. Prelesnik, 761 F.3d 610, 615 (6th Cir. 2014). Davis,
however, has not brought her injunctive relief claims against state officials in their official
capacity. Accordingly, because Davis has only named KCTCS as a defendant, these claims
are also barred by Eleventh Amendment sovereign immunity.
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B. Future amendment of the complaint
In her response, Davis asks the Court to allow her to cure any issues with her claims
through “possible future amendment” of her complaint. (DE 9, at 17). Davis, however, has
not tendered a separate motion to amend her complaint, did not attach a proposed amended
complaint to her response brief, and has not identified how she would amend her complaint
to avoid dismissal. The Court will not engage in speculation as to she could amend her
complaint to comply with principles of sovereign immunity and therefore declines Davis’s
request to cure the complaint through future amendment.
C. State law claims
Davis asserts claims under the Kentucky Civil Rights Act and Kentucky Wage and Hour
Act, seeking both money damages and injunctive relief. KCTCS has asked the Court to
dismiss Davis’s claims under the Wage and Hour Act based on Kentucky governmental
immunity while conceding that the Kentucky legislature has waived such immunity for Civil
Rights Act claims. KCTCS also argues that Davis is not entitled to bring a cause of action
under the Wage and Hour Act.
Federal district courts have supplemental jurisdiction over pendent state law claims
pursuant to 28 U.S.C. § 1367. Generally, “district courts may decline to exercise supplemental
jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it has
original jurisdiction.” Id. at § 1367(c)(3). In deciding whether to exercise this discretion, the
court should consider “the values of judicial economy, convenience, fairness, and comity.”
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (6th Cir. 1988). It is the usual practice
that “when the federal-law claims have dropped out of the lawsuit in its early stages and only
state-law claims remain, the federal court should decline the exercise of jurisdiction by
dismissing the case without prejudice.” Id. (citing United Mine Workers of America, 383 U.S.
715, 726–27 (1966). When a district courts determines that it should not exercise its
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discretionary jurisdiction over removed state-law claims, remand is appropriate. Id. at 354.
Here, the claims were originally brought in Fayette Circuit Court and therefore the Court
finds that, having dismissed all federal claims, remand to state court best serves the values
of judicial economy, convenience, fairness, and comity.4
IV. Conclusion
For the reasons set forth above, the Court HEREBY ORDERS:
1. Defendant’s Partial Motion to Dismiss is GRANTED;
2. Plaintiff’s claims for damages, retaliation, and injunctive relief brought under the
Americans with Disabilities Act and Family and Medical Leave Act, are DISMISSED;
3. all remaining claims are REMANDED to the docket of the Fayette Circuit Court;
4. this case is STRICKEN from the Court’s active docket.

Dated April 18, 2018.

Accordingly, the Court expresses no opinion as to whether governmental immunity bars Davis’s Wage and Hour
Act claims, whether Davis is entitled to bring a private action under the Wage and Hour Act, and whether Davis
has a claim for punitive damages against KCTCS under the Kentucky Civil Rights Act.
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