Gardner v. Western Kentucky University et al

Filing 8

MEMORANDUM OPINION AND ORDER by Chief Judge Thomas B. Russell on 10/12/2011 granting in part and denying in part 4 Defendants' Motions to Dismiss. (See Order for specifics.) cc: Counsel (CDF) Modified to correct Judge's name on 10/13/2011 (CDF).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CASE NO. 1:11-CV-00079
MARILYN M. GARDNER

PLAINTIFF

v.
WESTERN KENTUCKY UNIVERSITY, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court upon Defendants’ Motions to Dismiss. DN 4. Plaintiff
has responded. DN 6. Defendants have replied. DN 7. This matter is now ripe for adjudication.
For the following reasons Defendants’ motion is GRANTED IN PART and DENIED IN PART.
BACKGROUND
Plaintiff Marilyn M. Gardner (“Garnder”) is employed as an associate professor of Public
Health at Western Kentucky University (“WKU”) in Bowling Green, Kentucky. DN 1, ¶ 17; DN
5, ¶ 9. Gardner brings suit against WKU; Gary Ransdell, the president of WKU, in his official
and individual capacities; the Board of Regents of WKU (“Board of Regents”); and Melissa
Dennison, Yevette Haskins, Fredrick A. Higdon, Colton Jessie, Jim Johnson, James Kennedy,
Jim Meyer, Dr. Patrica Mintner, J. David Porter, Rob Wilkey, and Laurence J. Zielke, all in their
official capacity as members of the Board of Regents. DN 1, ¶¶ 7-9. Against the Defendants,
Gardner seeks declaratory, injunctive, and monetary relief for alleged violations of Title I of the
Americans with Disabilities Act (“ADA”) (42 U.S.C. § 12111 et seq.), Section 504 of the
Rehabilitation Act of 1973 (“Rehabilitation Act”) (29 U.S.C. § 794), and the Kentucky Civil
Rights Act (“KCRA”) (K.R.S. § 344.010 et seq.). DN 1, ¶¶ 24, 48. The Defendants seek to
dismiss these claims on legal and procedural grounds.

STANDARD
“When considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, the district court must accept all of the allegations in the complaint as true, and
construe the complaint liberally in favor of the plaintiff.” Lawrence v. Chancery Court of Tenn.,
188 F.3d 687, 691 (6th Cir. 1999) (citing Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995)).
To survive a Rule 12(b)(6) motion to dismiss, the complaint must include “only enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). The “[f]actual
allegations in the complaint must be enough to raise a right to relief above the speculative level
on the assumption that all the allegations in the complaint are true.” Twombly, 550 U.S. at 555
(internal citation and quotation marks omitted). A plaintiff must allege sufficient factual
allegations to give the defendant fair notice concerning the nature of the claim and the grounds
upon which it rests. Id.
Furthermore, “a plaintiff’s obligation to provide the grounds of his entitlement to relief
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Id. A court is not bound to accept “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements.” Iqbal, 129 S. Ct. at 1949.
DISCUSSION
I. Claims Against WKU.
Gardner seeks injunctive and compensatory relief against Western Kentucky University
(“WKU”) for violations of the ADA, Rehabilitation Act, and the KCRA. WKU admits that it is
subject to the ADA, Rehabilitation Act, and the KCRA. DN 5, ¶ 9. The Court’s analysis of

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Gardner’s claims against WKU is two-pronged and considers Gardner’s claims for monetary
damages first and her request for injunctive relief second.
A. Monetary Damages under the ADA, Rehabilitation Act, and KCRA.
In her Complaint, Gardner seeks “all appropriate damages, including actual and
statutory[,]” under the ADA, Rehabilitation Act, and the KCRA. DN 1, p. 9, ¶ 4. Case law is
clear that Gardner is only entitled to seek monetary damages for violations of the Rehabilitation
Act and the KCRA, not Title I of the ADA. As such, the ADA monetary damage claim against
WKU will be dismissed.
In Board of Trustees of the University of Alabama v. Garrett, the Supreme Court decided
“whether employees of the State of Alabama may recover money damages by reason of the
State’s failure to comply with the provision of Title I of the Americans with Disabilities Act of
1990.” Bd. of Trs. of the Univ. Of Ala. v. Garrett, 531 U.S. 356, 360 (2001). In answering the
issue before it, the Court held that Congress failed to validly abrogate the states’ Eleventh
Amendment sovereign immunity when enacting Title I of the ADA, and, as a result, the statute
did not provide a private right of action for monetary damages against the states. Id. at 363-74.
The holding of Garrett governs the present case and dictates that Gardner cannot maintain an
action for monetary damages against WKU for violations of Title I of the ADA. Because
Congress failed to properly abrogate the states’ sovereign immunity when enacting the statute,
Gardner’s claim for monetary damages under Title I of the ADA is dismissed.
Although Gardner cannot maintain a claim for monetary damages under Title I of the

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ADA, a suit for monetary damages under the Rehabilitation Act1 and the KCRA2 can proceed so
long as those claims have been sufficiently pled. The Court must now determine whether the
alleged violations of theses Acts have been sufficiently pled so as to overcome WKU’s motion to
dismiss. “When considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure, the district court must accept all of the allegations in the complaint as true,
and construe the complaint liberally in favor of the plaintiff.” Lawrence v. Chancery Court of
Tenn., 188 F.3d 687, 691 (6th Cir. 1999)
In her Complaint, Gardner claims to suffer from myasthenia gravis and bilateral hearing
loss, which renders her a qualified individual with a disability under the Rehabilitation Act and
the KCRA. DN 1, ¶¶ 10-11. She claims to have experienced at least two work-related injuries
as a result of her worsening symptoms. Id. at ¶¶ 18-19. After each injury, Gardner allegedly
made one or more requests for reasonable work-place accommodations, which WKU did not
provided or failed to timely provide. Id. at ¶¶ 21-22. Finally, Gardner claims that WKU
retaliated against her as a result of her accommodation requests, including a denial of
compensation and other benefits. Id. at ¶ 24.
The Court finds that the factual allegations made against WKU in Gardner’s complaint

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In Barnes v. Gorman, the Supreme Court found that punitive damages were not
available under Section 504 of the Rehabilitation Act. Barnes v. Gorman, 536 U.S. 181, 189
(2002). Although punitive damages were not available, “remedies for violations of . . . § 504 of
the Rehabilitation Act are coextensive with the remedies available in a private cause of action
brought under Title VI of the Civil Rights Act of 1964 . . . .” Id. at 185. Under Title VI, and
thus § 504 of the Rehabilitation Act, there is an implied private right of action for compensatory
damages against the states and their agencies. Id. at 187-89.
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See KRS § 344.450 (“Any person injured by any act in violations of the provisions of
[the KCRA] shall have a civil cause of action in Circuit Court to enjoin further violations, and to
recover the actual damages sustained, together with the costs of the law suit.”).
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are “enough to raise a right to relief above the speculative level on the assumption that all the
allegation in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). Gardner’s allegations against WKU are facially plausible and contain
“factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). WKU’s motion to
dismiss is denied with respect to the monetary damage claims arising under the provisions of §
504 of the Rehabilitation Act or the KCRA.
B. Injunctive Relief under the ADA, Rehabilitation Act, and KCRA.
In addition to monetary damages, Gardner seeks injunctive relief against WKU for
violations of Title I of the ADA, the Rehabilitation Act, and the KCRA. DN 1, p. 9, ¶ 3.
Injunctive relief is available as a remedy for violations of these statutes. See Garrett, 531 U.S.
374 n.9 (“[The ADA] standards can be enforced by . . . private individuals in actions for
injunctive relief.”); 29 U.S.C. § 794a(2) (providing that the remedies set forth under the Civil
Rights Act of 1964, which includes injunctive relief, are available for violations of the
Rehabilitation Act); KRS § 344.450 (authorizing injunctive relief for violations of the KCRA).
Gardner’s claims for injunctive relief will survive WKU’s motion to dismiss so long as
those claims “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
After examining Gardner’s Complaint, the Court finds that her claims for injunctive relief have
been sufficiently pled. Most significantly, Gardner asserts that WKU has failed to provide
reasonable accommodation for her disability after multiple accommodation requests. DN 1, ¶¶
18-22, 30, 39, 45. These allegation, if true, (as the Court presumes that they are for the purposes
of this motion to dismiss) would give rise to a continuing violation of law that injunctive relief

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could remedy. WKU’s motion to dismiss Gardner’s claims for injunctive relief under Title I of
the ADA, the Rehabilitation Act, and the KCRA is denied.
Summarizing the above analysis, WKU’s motion to dismiss monetary damages in regard
to alleged violations of Title I of the ADA is granted because there is no private right of action
for monetary damages under the Supreme Court’s holding in Garrett. WKU’s motion to dismiss
monetary damages under the Rehabilitation Act and the KCRA, and the motion to dismiss
Gardner’s injunctive relief claims under Title I of the ADA, the Rehabilitation Act, and the
KCRA are denied.
II. Official Capacity Claims Against Ransdell, the Board of Regents, and Members
of the Board of Regents.
In addition to WKU, Gardner has sued Defendants Ransdell, the WKU Board of Regents,
and the members of the Board of Regents, in their official capacity, (“Official Capacity
Defendants”) for violations of the ADA, the Rehabilitation Act, and the KCRA. DN 1, ¶¶ 8-9.
Again, the Court will consider the claims against the Official Capacity Defendants in two parts,
addressing monetary damages first and injunctive relief second.
A. Monetary Damages and the Official Capacity Defendants
Gardner’s seeks to recover monetary damages from the Official Capacity Defendants for
violations of the Title I of the ADA, the Rehabilitation Act, and the KCRA. The monetary
damage claims against these defendants will be dismissed on two grounds. First, and only in
regard to money damages arising under the ADA, there is no private right of action for monetary
damages under Title I of the ADA. See Garrett, 531 U.S. at 363-74.
Second, even if the Garrett rule was not binding, the monetary damage claims against the
Official Capacity Defendants under the ADA, the Rehabilitation Act, and the KCRA would be
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dismissed because “a suit against a state official in his or her official capacity is not a suit against
the official but rather is a suit against the official’s office. As such, it is no different from a suit
against the State itself.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). A suit
against a state officer in his or her official capacity:
‘[G]enerally represents only another way of pleading an action against an entity of
which an officer is an agent.’ As long as the government entity receives notice and
an opportunity to respond, an official-capacity suit is, in all respects other than name,
to be treated as a suit against the entity. It is not a suit against the official personally,
for the real party in interest is the entity.
Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (citations omitted). WKU received proper
notice of this present suit, responded with the other defendants, and is the real party in interest in
this case. Gardner has not asserted any monetary damage claims against Ransdell, the Board of
Regents, or members of the Board that have not been raised against WKU. Any recovery paid
by the Official Capacity Defendants would necessarily be paid out of WKU’s coffers. Because
WKU, as a government entity, is the real party in interest in this case, the official capacity claims
against Ransdell, the Board of Regents, and the members of the Board for monetary damages
under the ADA, the Rehabilitation Act, and the KCRA are dismissed.
B. Injunctive Relief and the Official Capacity Defendants
In addition to monetary damages, Gardner seeks injunctive relief against the Official
Capacity Defendants. The doctrine sets forth by the Supreme Court in Ex parte Young allows
Gardner’s injunctive relief claims to proceed against Official Capacity Defendants so long as
such claims have been sufficiently pled.
In Ex Parte Young, the Supreme Court carved out an exception to state sovereign
immunity provided by the Eleventh Amendment. See Ex parte Young, 209 U.S. 123 (1908).

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“Under Ex parte Young, suits against state officials seeking equitable relief for ongoing
violations of federal law are not barred by the Eleventh Amendment.” Mich. Bell Tel. Co. v.
Climax Tel. Co., 202 F.3d 862 (6th Cir. 2000) (citing Ex parte Young, 209 U.S. 159-60)
(emphasis added).3 Thus, under the Ex parte Young doctrine, Gardner’s claim for injunctive
relief will be allowed to proceed against the Official Capacity Defendants so long as her
allegations are pled above a speculative level. Twombly, 550 U.S. at 555.
In her Complaint, Gardner alleges that she made multiple requests to the defendants for
accommodation after sustaining work-place injuries. DN ¶¶ 18-19. Gardner further asserts that
the defendants knew of her disability and subsequently discriminated against her in violation of
the ADA, Rehabilitation Act, and KCRA by failing to reasonable accommodate her. DN ¶¶ 30,
32, 38-39, 44-45. The Court must take these allegations as true. See Lawrence v. Chancery
Court of Tenn., 188 F.3d 687, 691 (6th Cir. 1999). As a result, the Court finds that the
allegations in Gardner’s Complaint rise above the speculative level. The Official Capacity
Defendants’ motion to dismiss with respect to Gardner’s injunctive relief claim is denied.
In summary, Gardner has sued Defendants Ransdell, the WKU Board of Regents, and the
members of the Board of Regents, in their official capacity, for monetary and injunctive relief.
The Official Capacity Defendants’ motion to dismiss with respect to the monetary damages is
granted. The Official Capacity Defendants’ motion to dismiss with respect to injunctive relief is

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The Ex parte Young doctrine only applies to violations of federal law and does not
abrogate a state’s sovereign immunity where a plaintiff sues a state official on the basis of state
law. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984). In the present case,
however, Gardner’s injunctive relief claim based on the KCRA, a state law, against state
officials will be allowed to proceed, if sufficiently pled, because the Kentucky has waived its
immunity under the statute. See KRS § 344.010(1) (including in the definition of “person” the
“state [and] any of its political subdivisions or agencies”).
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denied.
II. Individual Capacity Claims Against Ransdell.
Gardner seeks to recover against Ransdell in his individual capacity. Under the federal
and state laws at issue, however, Ransdell cannot be found liable for actions taken in his
individual capacity, and any claims based on his individual capacity will be dismissed.
A. Federal Law and Ransdell’s Individual Capacity.
Gardner asserts that she can recover against Ransdell in his individual capacity for
discriminatory and retaliatory actions violating Title I of the ADA and Section 504 of the
Rehabilitation Act. See DN 1, ¶¶ 8, 25-39, 46-48. Before Gardner can recover against Ransdell
in his individual capacity, Ransdell must first be subject to the provisions of the ADA and the
Rehabilitation Act.
1) No Individual Liability Exists under the ADA.
The basic rule of the ADA is that “[n]o covered entity shall discriminate against a
qualified individual on the basis of disability in regard to . . . [the] privileges of employment.”
42 U.S.C. § 12112(a). In the statutory scheme, a “covered entity” includes an “employer,” who
is defined as a “person engaged in an industry affecting commerce who has 15 or more
employees for each working day in each of 20 or more calendar weeks in the current or
preceding calendar year, and any agent of such person . . .” subject to certain exceptions not
applicable here. 42 U.S.C. § 12111(5)(A). A person who “do[es] not independently qualify
under the statutory definition of employers may not be held personally liable in ADA cases.”
Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 808 n.1 (6th Cir. 1999). “[T]he [ADA] does
not provide for individual liability, only for employer liability.” Mason v. Stallings, 82 F.3d

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1007, 1009 (11th Cir. 1996). “[I]ndividuals who do not otherwise meet the statutory definition
of ‘employer’ cannot be liable under the ADA.” E.E.O.C. v. AIC Sec. Investigations, Ltd., 55
F.3d 1276 (7th Cir. 1995).
Gardner has sued Ransdell in his individual capacity for discriminatory and retaliatory
actions taken in violation of the ADA. DN 1, ¶¶ 8, 24-32, 46-48. Ransdell, in his individual
capacity, is not subject to the ADA, however, because he does not meet the statutory definition
of “employer” and cannot be held liable for violations of the statute. Gardner has failed to state
an individual capacity claim against Ransdell for which relief can be granted. The individual
capacity claim against Ransdell for violating the ADA is dismissed.
2) No Individual Liability Exists under the Rehabilitation Act.
In addition to the ADA claims, Gardner has sued Ransdell, in his individual capacity, for
violating both the discrimination and retaliation provisions of the Rehabilitation Act of 1973.
DN 1, ¶¶ 8, 33-39, 46-48. The Rehabilitation Act provides that “[n]o otherwise qualified
individual with a disability . . . shall, solely by reason of her or his disability, be excluded from
the participation in, be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance . . . .” 29 U.S.C. § 794(a). Case law
on both the discrimination and retaliation claims shows that Ransdell cannot be individually
liable for violations of the Rehabilitation Act.
Turning first to Gardner’s retaliation claim against Ransdell, the Sixth Circuit previously
addressed whether the Rehabilitation Act creates a private cause of action against employers in
their individual capacities for retaliatory employment practices. See Hiler v. Brown, 177 F.3d
542, 544 (6th Cir. 1999). The Hiler Court found, “[I]ndividuals who do not otherwise meet the

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statutory definition of ‘employer’ cannot be held liable under the Rehabilitation Act’s antiretaliation provision.” Id. at 547. The Rehabilitation Act defines “employer” as that term is
defined in Title VII. See id. at 546 n.5 (“The ADA . . . and the Rehabilitation Act borrowed the
definition of ‘employer’ from Title VII.”). Under Title VII an “employer” is a “person engaged
in a industry affecting commerce who has fifteen or more employees for each working day in
each of twenty or more calendar weeks in the current or preceding calendar year, and any agent
of such a person . . . .” 42 U.S.C. § 2000e(b). Ransdell, in his individual capacity, does not come
within this definition of “employer.” Gardner has failed to state an individual capacity claim
against Ransdell for which relief can be granted. The individual capacity claim against Ransdell
for violating the retaliation provisions of the Rehabilitation Act is dismissed.
Turning next to Gardner’s discrimination claim against Ransdell, courts have found that
individuals cannot be held liable for discriminatory actions that would otherwise be barred by the
Rehabilitation Act. “Indeed, numerous courts . . . have held that supervisors, sued in their
individual capacities, are not included within the definition of ‘employer’ under Title VII and its
sister civil rights statutes [the ADA, ADEA, and Rehabilitation Act], and accordingly cannot be
held personally liable for discrimination.” Hiler, 177 F.3d at 546 (citations omitted); see
Bevington v. Ohio Univ., 93 Fed. Appx. 748, *5 (6th Cir. 2004) (“[A plaintiff] may not maintain
an action under the [Rehabilitation Act] against the individuals identified in his complaint
because the [Rehabilitation Act] does not impose liability upon individuals.”) (emphasis added)
(citing Hiler, 177 F.3d at 547). Simply put, the Rehabilitation Act does not impose liability on
individuals. Gardner has failed to state an individual capacity claim against Ransdell for which
relief can be granted. The individual capacity claim against Ransdell for violating the

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discrimination provisions of the Rehabilitation Act is dismissed.
B. State Law and Gardner’s Individual Capacity Claims Against Ransdell.
Gardner asserts that she is entitled to recover under state law for violations of the
Kentucky Civil Rights Act (“KCRA”) by Ransdell in his individual capacity. See DN 1, ¶¶ 8,
40-48. The KCRA provides, “It is an unlawful practice for an employer . . . to discriminate
against an individual with respect to compensation, terms, conditions, or privileges of
employment . . . because the person is a qualified individual with a disability . . . .” K.R.S. §
344.040(1)(a). Before Gardner can recover against Ransdell in his individual capacity, Ransdell
must first be subject the KCRA.
The prohibition on discrimination in the KCRA applies only to an “employer”. For the
purposes of determining discrimination based on disability, the KCRA defines an “employer” as
“a person engaged in an industry affecting commerce who has fifteen (15) or more employees
each working day in each of twenty (20) or more calendar weeks in the current or preceding
calendar year, and any agent of that person . . . .” K.R.S. § 344.030(2). Courts in the Sixth
Circuit have held that a person has no individual liability for violations of the KCRA unless he
or she fits the definition of “employer” in the statute. See Wathen v. General Elec. Co., 115 F.3d
400, 404-05 (6th Cir. 1997); Walker v. MDM Servs. Corp., 997 F.Supp. 822, 823 (W.D. Ky.
1998) (“An individual employee/supervisor, who does not otherwise qualify as an ‘employer,’
may not be held personally liable under . . . the Kentucky Civil Rights Act.”).
Ransdell, in his individual capacity, does not meet the definition of “employer” in the
KCRA. Gardner has failed to state an individual capacity claim against Ransdell for which relief
can be granted. The individual capacity claim against Ransdell for violating the KCRA is

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dismissed.
CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that Defendants’ Motion to
Dismiss be:
GRANTED to WKU for monetary damages under Title I of the ADA;
DENIED to WKU for monetary damages under the Rehabilitation Act and the KCRA;
DENIED to WKU for injunctive relief under Title I of the ADA, the Rehabilitation Act,
and the KCRA;
GRANTED to Ransdell, the WKU Board of Regents, and the members of the Board, in
their official capacity, for monetary damages under Title I of the ADA, the
Rehabilitation Act, and the KCRA;
DENIED to Ransdell, the WKU Board of Regents, and the members of the Board, in
their official capacity, for injunctive relief under Title I of the ADA, the
Rehabilitation Act, and the KCRA; and
GRANTED to Ransdell, in his individual capacity, for monetary damages and injunctive
relief under Title I of the ADA, the Rehabilitation Act, and the KCRA.

October 12, 2011

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