Webster v. Board of Supervisors of the University of Louisiana System et al
ORDER AND REASONS granting in part and denying in part 7 Motion to Dismiss for Failure to State a Claim. The Court declines to dismiss Webster's claims for prospective declaratory and injunctive relief brought against Johnson, Ralph and Pregeant in their official capacities. The Court DISMISSES all other claims with prejudice.. Signed by Chief Judge Sarah S. Vance on 8/8/14. (jjs)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DR. MICHAEL G. WEBSTER
BOARD OF SUPERVISORS OF THE UNIVERSITY
OF LOUISIANA SYSTEM, et al.
ORDER AND REASONS
Defendants move to dismiss plaintiff Michael Webster's
complaint under Federal Rule of Civil Procedure 12(b)(6).1 For
the following reasons, the Court GRANTS Defendants' motion in
part and DENIES it in part.
Webster sues the Board of Supervisors of the University of
Louisiana System; Eric Johnson, in his personal capacity and
official capacity as Sims Library Director at Southeastern
Louisiana University ("SLU"); Lynette Ralph, in her personal
capacity and official capacity as Assistant Sims Library Director
at SLU; and Victor Pregeant, in his personal capacity and
official capacity as Compliance Officer for Equal Employment
Opportunity / Americans with Disabilities Act at SLU.2 Webster's
complaint alleges exclusively violations of the Americans with
R. Doc. 7.
R. Doc. 1 at 2-3.
Disabilities Act of 1990 ("ADA") and the ADA Amendments Act of
Webster alleges the following facts. In 2007, SLU hired him
as a Collection Development Librarian.4 In early 2008, he
informed Ralph, his immediate supervisor, that he suffered from
manic and major depression and that, despite taking medication,
he might occasionally behave irrationally.5 On June 19, 2009,
while suffering a manic episode, Webster sent Ralph an email
falsely accusing Johnson of sexual harassment.6 The next day,
realizing what he had done, Webster sent Ralph an email
explaining that the accusation was caused by a manic episode and
asking her to delete and disregard it.7
On or about July 6, 2009, Ralph and Johnson informed Webster
that SLU would not renew his contract; that his employment would
cease on January 6, 2010; and that, in the meantime, he was
demoted from Collection Development Librarian to Special Projects
Librarian.8 A week later, Webster filed a complaint with Pregeant
alleging harassment based on his disability and requesting an
Id. at 1, 11-13.
Id. at 3.
Id. at 5.
Id. at 7.
Id. at 8.
accommodation.9 He alleges that Pregeant refused to investigate
his complaint, because Webster was unable to provide records of
his disability from a medical specialist.10
In August 2009, Webster filed a complaint with the Equal
Employment Opportunity Commission ("EEOC").11 The EEOC later
informed him that SLU had agreed not to affect his termination
until the EEOC completed its investigation and issued its
determination.12 Nonetheless, SLU terminated Webster effective
July 14, 2010, before the EEOC completed its investigation.13
Webster alleges that from July 2009 through his date of
termination, he was publicly ridiculed and embarrassed for his
disability and the side effects of his medication.14
On September 28, 2011, the EEOC issued its determination
finding reasonable cause to believe that SLU terminated Webster
because of his disability.15 The EEOC engaged the parties in
conciliation efforts, which proved unsuccessful.16 On September
Id. at 9.
Id. at 10.
Id. at 11.
Id.; see R. Doc. 1-1 at 1.
R. Doc. 1 at 10.
R. Doc. 1-1.
See R. Docs. 1-1, 1-2.
9, 2013, the Department of Justice issued Webster a right to sue
letter.17 Webster brought this action on December 9, 2013.
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead enough facts "to state a claim to relief that is
plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)) (quotation marks removed). A claim is facially plausible
when the plaintiff pleads facts that allow the court to "draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Id. at 678. A court must accept all
well-pleaded facts as true and must draw all reasonable
inferences in favor of the plaintiff. Lormand v. US Unwired,
Inc., 565 F.3d 228, 239 (5th Cir. 2009); Baker v. Putnal, 75 F.3d
190, 196 (5th Cir. 1996). But the Court is not bound to accept as
true legal conclusions couched as factual allegations. Iqbal, 556
U.S. at 678.
A legally sufficient complaint must establish more than a
"sheer possibility" that the plaintiff's claim is true. Id. It
need not contain detailed factual allegations, but it must go
beyond labels, legal conclusions, or formulaic recitations of the
elements of a cause of action. Id. In other words, the face of
R. Doc. 1-2.
the complaint must contain enough factual matter to raise a
reasonable expectation that discovery will reveal evidence of
each element of the plaintiff's claim. Lormand, 565 F.3d at 257.
If there are insufficient factual allegations to raise a right to
relief above the speculative level, or if it is apparent from the
face of the complaint that there is an insuperable bar to relief,
the claim must be dismissed. Twombly, 550 U.S. at 555; Jones v.
Bock, 549 U.S. 199, 215 (2007); Carbe v. Lappin, 492 F.3d 325,
328 n.9 (5th Cir. 2007).
Webster seeks declaratory, monetary and injunctive relief.18
The Court concludes that his claims for money damages must be
dismissed, while his claims for declaratory and injunctive relief
against Johnson, Ralph and Pregeant in their official capacities
Claims for Money Damages Against SLU and Against Johnson,
Ralph and Pregeant in Their Official Capacities
Defendants assert sovereign immunity under the Eleventh
Amendment.19 "The ultimate guarantee of the Eleventh Amendment is
that nonconsenting States may not be sued by private individuals
R. Doc. 1 at 14-15.
R. Doc. 7.
in federal court." Bd. of Trustees of Univ. of Ala. v. Garrett,
531 U.S. 356, 363 (2001) ("Garrett"). Congress may abrogate this
immunity "when it both unequivocally intends to do so and 'act[s]
pursuant to a valid grant of constitutional authority.'" Id.
(quoting Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73 (2000)).
In Garrett, the Supreme Court held that Congress did not act
pursuant to a valid grant of constitutional authority when it
purported to abrogate state sovereign immunity under Title I of
the ADA. Id. at 374. Accordingly, the states retain Eleventh
Amendment immunity against employment claims under the ADA. Id.
Although Webster has not sued the state of Louisiana in its
own name, Eleventh Amendment immunity extends to the defendants
in this case. "The Board of Supervisors for the University of
Louisiana System, as the governing body for Southeastern
Louisiana University, is an agency of the State of Louisiana and
has Eleventh Amendment immunity from suit against it in federal
court." Rushing v. Bd. of Supervisors of Univ. of La. Sys., No.
06-623-C, 2008 WL 4200292, at *3 (M.D. La. Sept. 11, 2008); see
Laxey v. La. Bd. of Trustees, 22 F.3d 621, 623 (5th Cir. 1994)
(Public university "under the supervision and management of the
Board of Trustees of State Colleges and Universities . . . is an
arm of the state and protected from suit in federal court by the
Eleventh Amendment."). Further, state sovereign immunity extends
to claims for money damages against state officers in their
official capacities. McCarthy ex rel. Travis v. Hawkins, 381 F.3d
407, 412 (5th Cir. 2004). Accordingly, Webster's claims for money
damages against SLU and Johnson, Ralph and Pregeant in their
officials capacities must be dismissed.
Webster makes three arguments against application of state
sovereign immunity in this case. First, he argues that Defendants
waived sovereign immunity by engaging in affirmative litigation
conduct.20 This argument is without merit. The test to determine
"whether a State has waived its immunity from federal-court
jurisdiction is a stringent one." College Sav. Bank v. Fla.
Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675 (1999)
(quoting Atascadero State Hospital v. Scanlon, 473 U.S. 234, 241
(1985)) (quotation marks removed). "Generally, we will find a
waiver either if the State voluntarily invokes our jurisdiction,
or else if the State makes a 'clear declaration' that it intends
to submit itself to our jurisdiction." Id. at 676 (citations
removed). Here, Defendants' first filing was their motion to
dismiss, invoking Eleventh Amendment immunity. Although they
subsequently have engaged in discovery and responded to an order
of the Magistrate Judge, such conduct does not constitute either
voluntarily invocation of federal-court jurisdiction or a clear
declaration of an intent to submit to such jurisdiction. The
Court holds that Defendants have not waived sovereign immunity.
R. Doc. 15 at 1-3.
Second, Webster argues that Eleventh Amendment immunity does
not apply to his claims for retaliation.21 See 42 U.S.C.
§ 12203(a). He argues that the Court should recognize abrogation
of sovereign immunity for retaliation claims under the ADA,
because "Congress has the right to prohibit conduct that violates
the First Amendment."22 His argument is based on the presumption
that his communications to Ralph and Pregeant that allegedly
spurred retaliation receive First Amendment protection. It is
true that the First Amendment applies "when a public employee
arranges to communicate privately with his employer . . . [on] a
matter of public concern." Connick v. Myers, 461 U.S. 138, 146
(1983). But "[w]hen employee expression cannot be fairly
considered as relating to any matter of political, social, or
other concern to the community, government officials should enjoy
wide latitude in managing their offices, without intrusive
oversight by the judiciary in the name of the First Amendment."
Id. In other words, "when a public employee speaks not as a
citizen upon matters of public concern, but instead as an
employee upon matters only of personal interest," First Amendment
protections generally do not apply. Id. at 147. Webster's
complaint does not allege that he spoke to Ralph and Pregeant as
a citizen on matters of public concern. Rather, it indicates that
Id. at 5-7.
Id. at 6.
he made the communications that allegedly prompted retaliation as
an individual either complaining about his working conditions23
or attempting to protect his employment.24 Accordingly, the Court
finds that Webster does not plausibly allege a retaliation claim
under the First Amendment. See Chiasson v. City of Thibodaux, 347
F. Supp. 2d 300, 308-09 (E.D. La. 2004) ("When the content of
speech 'deals with individual personnel disputes and grievances,'
the speech does not involve a matter of public concern.").
Third, Webster argues that Congress validly abrogated state
sovereign immunity for ADA employment claims with the ADA
Amendments of 2008, rendering Garrett outdated and no longer good
law.25 Webster cites no case law, in this circuit or elsewhere,
to support this proposition. Moreover, the Court has already
See R. Doc. 1 at 7 ("[Webster] emailed Ralph regarding
his opinion on [a purchasing meeting at which he had strongly
disagreed with a co-worker]. Despite certain points in the email
appearing to be rational points, by the last few paragraphs of
the email, Dr. Webster's statements were unusual to say the least
– accusing Johnson of sexual harassment.").
See id. at 7 ("Dr. Webster immediately emailed Ralph
requesting she ignore and delete his emails sent on June 19,
2009, and that these emails were caused by a manic depressive
episode. . . . During [a] meeting [with Ralph], Dr. Webster was
in tear[s] trying to explain that his depression episode caused
this email, that he would never have sent that in sound mind, and
that his statements were baseless."), 9 ("Dr. Webster filed a
three-page complaint to Pregeant alleging harassment based on his
disability and requesting an accommodation."), 10 ("In August
2009, Dr. Webster filed his complaint with the Equal Employment
R. Doc. 15 at 9-13.
rejected this argument. See Williams v. Recovery Sch. Dist., 859
F. Supp. 2d 824, 832 (E.D. La. 2012) ("Suits brought under Title
I of the ADA . . . are barred by the Eleventh Amendment. The ADA
Amendments Act of 2008 does not change this analysis.")
(citations removed). In sum, the Court concludes that Defendants'
invocation of state sovereign immunity precludes Webster's claims
for money damages against SLU and against Johnson, Ralph and
Pregeant in their official capacities.
Claims Against Johnson, Ralph and Pregeant in Their Personal
Webster also brings claims against Johnson, Ralph and
Pregeant in their personal capacities. The Court concludes that
these claims must be dismissed, because the ADA does not permit
individual liability against agents of an employer.
The ADA's employment discrimination provisions apply only to
"covered entities." 42 U.S.C. § 12112(a). The ADA defines a
"covered entity" as "an employer, employment agency, labor
organization, or joint labor-management committee." 42 U.S.C.
§ 12111(2). As relevant here, it defines "employer" 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." 42 U.S.C. § 12111(5)(A).
"[S]everal circuit courts have concluded that individuals
may not be held liable under the ADA, despite the agent provision
in the definition of 'employer.'" Franklin v. City of Slidell,
928 F. Supp. 2d 874, 881 (E.D. La. 2013) (collecting cases).
Although the Fifth Circuit has not ruled on this question, it
"has made clear that individuals who do not otherwise qualify as
'employers,' as a sole proprietor would, cannot be held
individually liable under Title VII of the Civil Rights Act of
1964 ('Title VII')." Starkman v. Evans, 18 F. Supp. 2d 630, 632
(E.D. La. 1998) (citing Grant v. Lone Star Co., 21 F.3d 649 (5th
Cir. 1994)). Likewise, the Age Discrimination in Employment Act
("ADEA") "provides no basis of relief against supervisors in
their individual capacity." Id. (citing Stults v. Conoco, Inc.,
76 F.3d 651 (5th Cir. 1996)). Since the ADA's definition of
"employer" is the same as the definitions of "employer" in Title
VII and in the ADEA, the Court concludes that individuals who do
not meet the statutory definition of "employer" cannot be held
liable in their individual capacities under the employment
provisions of the ADA. See id. (quoting Kacher v. Houston
Community College Sys., 974 F. Supp. 615, 618 (S.D. Tex. 1997));
accord Franklin, 928 F. Supp. 2d at 881-82.
The Court concludes that the ADA does not permit personal
liability against Johnson, Ralph and Pregeant. Accordingly, the
claims against these defendants in their personal capacities must
Claims for Prospective Relief
Although Webster's claims for money damages must be
dismissed, the Court finds that his claims for prospective
declaratory and injunctive relief against Johnson, Ralph and
Pregeant in their official capacities may proceed at this time.
In his complaint, Webster explicitly seeks declaratory relief,
reinstatement, and an injunction restraining Defendants'
allegedly discriminatory practices.26 "Pursuant to the Ex parte
Young exception, the Eleventh Amendment is not a bar to suits for
prospective relief against a state employee acting in his
official capacity." Nelson v. Univ. of Tex. at Dallas, 535 F.3d
318, 321 (5th Cir. 2008). "To meet the Ex Parte Young exception,
a plaintiff's suit alleging a violation of federal law must be
brought against individual persons in their official capacities
as agents of the state, and the relief sought must be declaratory
or injunctive in nature and prospective in effect." Aguilar v.
Tex. Dep't of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir.
1998). The Fifth Circuit views the Ex parte Young exception "as
an appropriate vehicle for pursuing reinstatement to a previous
job position." Nelson, 535 F.3d at 322. Accordingly, the Court
R. Doc. 1 at 14-15.
concludes that Webster states plausible claims for declaratory
and injunctive relief against Johnson, Ralph and Pregeant in
their official capacities.
For the foregoing reasons, Defendants' motion to dismiss is
GRANTED IN PART and DENIED IN PART. The Court declines to dismiss
Webster's claims for prospective declaratory and injunctive
relief brought against Johnson, Ralph and Pregeant in their
official capacities. The Court DISMISSES all other claims with
New Orleans, Louisiana, this ______ day of August, 2014.
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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