KELLEY v. MAYHEW et al

Filing 8

ORDER ON DEFENDANTS MOTION TO DISMISS denying 4 Motion to Dismiss By JUDGE NANCY TORRESEN. (dfr)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ROSEMARY S. KELLEY,
Plaintiff,
v.
MARY MAYHEW, in her official
capacity as Commissioner, State of
Maine Department of Health and
Human Services and STATE OF
MAINE, DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
Defendants.

)
)
)
)
) Civil No. 1:12-CV-00390-NT
)
)
)
)
)
)
)
)
)

ORDER ON DEFENDANTS’ MOTION TO DISMISS
This case comes before the Court on the Defendants’ motion to dismiss the
Complaint for lack of subject-matter jurisdiction and failure to state a claim (ECF
No. 4). For the following reasons, the Defendants’ motion to dismiss is denied.
Background
The Plaintiff, Rosemary S. Kelley, alleges the following facts in the
Complaint. Since childhood, Kelley has had hearing loss and worn hearing aids.
Compl. ¶ 6 (ECF No. 3-2). She had worked as a teacher’s assistant at Sonshine
Nursery School (“Sonshine”) in Friendship, Maine for 31 years until December 23,
2011, when Sonshine ended her employment because Maine’s Department of Health
and Human Service’s (“DHHS”) Division of Licensing and Regulatory Services

(“DLRS”) would not count her towards Sonshine’s staff-to-child ratio for purposes of
its license to operate a child care facility. Compl. ¶¶ 10, 23-25.
On September 17, 2010, while Kelley was working, DLRS Community Care
Worker Brian McAuliffe visited the school to conduct a survey for the school’s
application for renewal of its license to operate a child care facility. During the visit,
McAuliffe became concerned that Kelley was unable to effectively supervise the
children because of her hearing loss. Compl. ¶¶ 11-12. McAuliffe had no training or
expertise in hearing loss and did not request any information from Kelley about her
hearing loss; he at no point asked for a report from her audiologist or asked to
review any of her audiograms. Kelley noticed that McAuliffe was observing her that
day and asked if anything was wrong. He told her that there was no problem.
Compl. ¶¶ 13-16.
McAuliffe told Sonshine’s director that he was concerned that Kelley would
not be able to hear and respond to the children in an emergency. Compl. ¶ 17.
McAuliffe determined that Kelley could not be counted as a staff member for
Sonshine’s staff-to-child ratio. Compl. ¶ 22. Kelley was one of two staff members
supervising a classroom of thirteen children, and if she could not be counted in her
class’s staff-to-child ratio, Sonshine would need to hire another staff member.
Compl. ¶ 21.
On September 21, 2010, DLRS renewed Sonshine’s license with the
understanding that Sonshine would hire a new employee to comply with the staffto-child ratio. Compl. ¶ 23. In an October 29, 2010 e-mail to his supervisor,

2

McAuliffe said: “Unless another staff [member] is available, licensing action will
need to be taken on the license, due to the facility not meeting proper staff-child
ratios.” Compl. ¶ 24.
On November 22, 2010, Sonshine’s Chairman of the Board told Kelley that
she would be replaced on December 23, 2010, because of the licensing issue. Kelley
asked for a chance to get new hearing aids, but the school was too concerned about
its license to consider her request. Compl. ¶¶ 25-26.
In December of 2010, Kelley contacted McAuliffe and DLRS several times. In
a December 28, 2010 email, Kelley told McAuliffe that she had been wearing
hearing aids for the entire 31 years that she worked at Sonshine, that being fired
was a nightmare because she loved the children at Sonshine, that she needed new
hearing aids, and that she would get them shortly. She told him that she would
correct anything she was doing wrong so that she could continue working with
children. Compl. ¶ 27. DLRS was unresponsive to Kelley’s pleas. Compl. ¶ 28.
Kelley brought a three-count complaint in Kennebec County Superior Court
against DHHS and its commissioner, Mary Mayhew, for unlawful discrimination
under the Maine Human Rights Act (“MHRA”), 5 M.R.S.A. § 4592(1), (7) (Count I),
Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, (Count
II), and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, (Count III). She
seeks a declaratory judgment that the State of Maine’s practices are unlawful,
injunctive relief ordering the Defendants to promulgate non-discriminatory written
policies and procedures, damages, attorney’s fees, and costs.

3

The Defendants removed the case to this Court and filed a motion to dismiss
the Complaint on the following grounds: (1) the Plaintiff has failed to state a claim
upon which relief can be granted under Title II of the ADA, the MHRA, and Section
504 of the Rehabilitation Act; (2) the Eleventh Amendment bars the Plaintiff’s Title
II claim against the state and Commissioner Mayhew; and (3) the Plaintiff’s claims
against Commissioner Mayhew in her official capacity are duplicative of the
Plaintiff’s action against DHHS, so Commissioner Mayhew should be dismissed as a
defendant.
Discussion
I.

Discrimination Under Title II of the ADA
A. Legal Standard
Pursuant to the Supreme Court’s opinion in United States v. Georgia, 546

U.S. 151, 159 (2006), the Court turns first1 to whether the Plaintiff has stated a
claim for a violation of Title II of the ADA.2 Rule 8 of the Federal Rules of Civil
Procedure requires that a complaint contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Each
allegation must be simple, concise, and direct.” Fed R. Civ. P. 8(d)(1). A motion to
The order of operations is important. This Court should avoid the Eleventh Amendment
issue if the case can be decided on other grounds. Buchanan v. Maine, 469 F.3d 158, 170 (1st Cir.
2006).
1

For purposes of the Defendant’s 12(b)(6) motion, the parties do not distinguish between the
ADA, the Rehabilitation Act, and the MHRA. The sufficiency of the Complaint for the Plaintiff’s Title
II claim controls her MHRA and Section 504 claims as well. See Calero-Cerezo v. U.S. Dep’t of
Justice, 355 F.3d 6, 19 (1st Cir. 2004) (“The Rehabilitation Act . . . applies to federal agencies,
contractors and recipients of federal financial assistance . . . . [T]he case law construing the ADA
generally pertains equally to claims under the Rehabilitation Act.”); Dudley v. Hannaford Bros., Co.,
333 F.3d 299, 312 (1st Cir. 2003) (“It is settled law that the MHRA should be construed and applied
along the same contours as the ADA.”).
2

4

dismiss for failure to state a claim under Rule 12(b)(6) tests whether a plaintiff has
alleged sufficient non-conclusory, non-speculative facts that “plausibly narrate a
claim for relief.” Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st
Cir. 2013); see also Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). The Court takes
the Complaint’s well-pled facts as true and draws all reasonable inferences in the
plaintiff’s favor. Schatz, 669 F.3d at 55.
B. Title II of the ADA
The ADA has five titles, “three of which are meant to eliminate in a distinct
area discrimination against persons with disabilities.” Buchanan, 469 F.3d at 170.
Title I deals with discrimination by employers affecting interstate commerce, and
Title III governs discrimination in public accommodations and services operated by
private entities. Id. This case involves Title II of the ADA, 42 U.S.C. §§ 1213112165, which “addresses discrimination by governmental entities in the operation of
public services, programs, and activities, including transportation . . . .” Id.
Section 12132 of Title II provides that “no qualified individual with a
disability3 shall, by reason of such disability, be excluded from participation in or be
denied the benefits of the services, programs, or activities of a public entity,4 or be
subjected to discrimination by any such entity.” 42 U.S.C. § 12132. But Title II

Title II defines “[q]ualified individual with a disability” as “an individual with a disability
who, with or without reasonable modifications to rules, policies, or practices, the removal of
architectural, communication, or transportation barriers, or the provision of auxiliary aids and
services, meets the essential eligibility requirements for the receipt of services or the participation in
programs or activities provided by a public entity.” 42 U.S.C. § 12131(2).
3

Title II defines “public entity” as “(A) any State or local government; (B) any department,
agency, special purpose district, or other instrumentality of a State or States or local
government . . . .” 42 U.S.C. § 12131(1).
4

5

“does not require a public entity to permit an individual to participate in or benefit
from the services, programs, or activities of that public entity when that individual
poses a direct threat to the health or safety of others.” 28 C.F.R. § 35.139(a). “The
protection afforded by the ADA is characterized as a guarantee of ‘meaningful
access’ to governmental benefits and programs, which broadly means that public
entities must take reasonable steps to ensure that individuals with disabilities can
take advantage of such public undertakings.” Theriault v. Flynn, 162 F.3d 46, 48
(1st Cir. 1998) (citations omitted). The First Circuit has explained:
To prevail on a Title II claim, a plaintiff must demonstrate: “(1) that he
is a qualified individual with a disability; (2) that he was either
excluded from participation in or denied the benefits of some public
entity’s services, programs, or activities or was otherwise
discriminated against; and (3) that such exclusion, denial of benefits,
or discrimination was by reason of the plaintiff’s disability.”
Buchanan, 469 F.3d at 170-71 (quoting Parker v. Universidad de P.R., 225 F.3d 1, 5
(1st Cir. 2000)). To recover compensatory damages under either Title II or Section
504, a plaintiff must demonstrate that the state intentionally discriminated against
her and caused her economic harm. Nieves-Márquez v. P. R., 353 F.3d 108, 126 (1st
Cir. 2003).
C. The Plaintiff’s Allegations
The Defendants essentially argue that the Plaintiff has not adequately
alleged any of the three elements of a Title II claim and that she has not alleged
that the state intentionally discriminated against her.
Title II cases comes in many different shapes and sizes, but neither party has
cited a case which is on all fours with this one. Although the fit is not perfect, case

6

law and the federal regulations on disability discrimination in licensing provide the
best guidance for analyzing the Plaintiff’s claims.
1.

Qualified Individual with a Disability

According to the First Circuit:
In the context of licensing or certification, a person is “qualified” and
thus within the protected category if he or she can meet the “essential
eligibility requirements” for receiving a license or certification, with
accommodation made for the disability. In determining whether
“essential eligibility requirements” are met, a public entity properly
may consider whether an applicant with a disability poses a direct
threat to the health and safety of others.
Theriault, 162 F.3d at 48 (citations omitted). The Department of Justice regulations
provide:
In determining whether an individual poses a direct threat to the
health or safety of others, a public accommodation must make an
individualized assessment, based on reasonable judgment that relies
on current medical knowledge or on the best available objective
evidence, to ascertain: The nature, duration, and severity of the risk;
the probability that the potential injury will actually occur; and
whether reasonable modifications of policies, practices, or procedures
or the provision of auxiliary aids or services will mitigate the risk.
28 C.F.R. § 36.208(b) (applicable to Title II per 28 C.F.R. pt. 35 App. A, at 575
(2012).
The Complaint alleges that McAuliffe made a visit to Sonshine where he
observed Kelley and became concerned that she was not able to effectively supervise
the children and would not be able to hear the children in the event of an
emergency. McAuliffe allegedly determined that Kelley could not be counted in the
staff-to-child ratio and that DLRS renewed Sonshine’s license “with the
understanding that any requested corrects would be made by Sonshine within a

7

reasonable time.” Compl. ¶ 23. The Complaint also alleges that McAuliffe stated in
an e-mail to his supervisor dated October 29, 2010, that “[u]nless another staff is
available, licensing action will need to be taken on the license, due to the facility not
meeting proper staff-child ratios.” Compl. ¶ 24. The Complaint contains no factual
allegations explaining what McAuliffe saw that made him concerned about Kelley
and her ability to supervise the children. It does allege that McAuliffe has no
training or expertise in hearing loss and that he made no further inquiry into
Kelley’s condition, either by speaking to Kelley’s audiologist (who could have told
him more about Kelley’s abilities and limitations) or by asking to look at Kelley’s
audiograms (which would have shown him the extent of Kelley’s hearing loss). To
the extent that McAuliffe made a determination that Kelley posed a direct threat to
the health or safety of the children, it is reasonable to infer from the allegations in
the Complaint that McAuliffe’s assessment was not based on a reasonable judgment
that relied on current medical knowledge or on the best available objective evidence,
as required by federal regulations.
Kelley worked as a teaching assistant at Sonshine for thirty-one years and
wore hearing aids during her entire tenure. This allows the Court to infer that she
was qualified for her position. The Complaint alleges that after Kelley learned that
she would not be counted in Sonshine’s staff-to-child ratio, Kelley asked both
Sonshine and DLRS for an opportunity to get new hearing aids. An individual is
qualified if she meets the “essential eligibility requirements for the receipt of
services or the participation in programs or activities provided by a public entity”

8

“with . . . the provision of auxiliary aids.” 42 U.S.C. § 12131(2). It is reasonable to
infer that improved hearing aids would have corrected any hearing difficulties
McAuliffe observed that day. The Complaint alleges sufficient facts to satisfy the
first element of the Plaintiff’s discrimination claim.
2.
Exclusion from Participation in or Denial of Public
Entity’s Benefits, Services, Programs, or Activities or
Subjection to Discrimination
The Defendants argue that Kelley cannot make out the second element of her
discrimination claim because: (1) she was not the licensee; (2) Sonshine, rather than
DLRS, fired Kelley; (3) DLRS was under no duty to accommodate Kelley; and (4)
Kelley did not request an accommodation. These arguments are unavailing.
Title II’s regulations establish that public entities may not administer
licensing programs in “a manner that subjects qualified individuals with disabilities
to discrimination on the basis of disability.” 28 C.F.R. § 35.130(b)(6). The Federal
Register explains:
the public entity may not establish requirements for the programs or
activities of licensees or certified entities that subject qualified
individuals with disabilities to discrimination on the basis of disability.
For example, the public entity must comply with this requirement
when establishing safety standards for the operations of licensees. In
that case the public entity must ensure that standards that it
promulgates do not discriminate against the employment of qualified
individuals with disabilities in an impermissible manner.
Nondiscrimination on the Basis of Disability in State and Local Government
Services, 56 Fed. Reg. 35,694, 35,704 (July 26, 1991) (codified at 28 C.F.R. §
35.130(b)(6)). The Plaintiff also cites the Department of Justice’s Title II Technical

9

Assistance Manual, which provides guidance to state and local government to help
them apply 28 C.F.R. § 35.130(b)(6). The manual explains that:
a public entity may not establish requirements for the program or
activities of licensees that would result in discrimination against
qualified individuals with disabilities. For example, a public entity’s
safety standards may not require the licensee to discriminate against
qualified individuals with disabilities in its employment practices.
Dep’t of Justice, Title II Technical Assistance Manual § II-3.7200 (1993); see also 42
U.S.C. §§ 12134, 12206 (directing the Department of Justice to promulgate
regulations to implement Title II and render technical assistance explaining the
responsibilities of covered individuals and entities); Bragdon v. Abbott, 524 U.S.
624, 642, 646-47 (1998) (holding that “the well-reasoned views of the agencies
implementing a statute ‘constitute a body of experience and informed judgment to
which courts and litigants may properly resort for guidance’” and therefore relying
in part on guidance in the Justice Department’s Title II Assistance Manual (quoting
Skidmore v. Swift & Co., 323 U.S. 134, 139-40 (1944)). It provides the following
illustration:
A State prohibits the licensing of transportation companies that
employ individuals with missing limbs as drivers. XYZ company
refuses to hire an individual with a missing limb who is “qualified” to
perform the essential functions of the job, because he is able to drive
safely with hand controls. The State’s licensing requirements violate
Title II.
Dep’t of Justice, Title II Technical Assistance Manual § II-3.7200 (1993).
DLRS first argues that it did not exclude Kelley from a service or program
and that its duties extend only to the licensee, not to employees of the licensee. It
further argues that it was Sonshine that terminated Kelley and that DLRS did not

10

take any discriminatory action against her. This line of argument ignores the final
phrase of Title II: “no qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by any
such entity.” 42 U.S.C. § 12132 (emphasis added). The First Circuit has suggested,
albeit in the context of determining whether employment claims are cognizable
under Title II of the ADA, that “the words ‘public services, programs, or activities’
do not necessarily exclude employment, and the ‘subjected to discrimination’ clause
may broaden the scope of coverage further.” Currie v. Group Ins. Comm’n, 290 F.3d
1, 6-7 (1st Cir. 2002) (footnote omitted).
Based on the allegations in the Complaint, DLRS’s decision that Kelley could
not be counted in the school’s staff-to-child ratio guaranteed her dismissal—and
affected her ability to work with children elsewhere. Even though Kelley is not the
licensee, according to the allegations in the Complaint, DLRS’s administration of its
licensing scheme subjected Kelley to discrimination based on her disability, in
violation of 28 C.F.R. 35.130(6).
Discrimination can include a public entity’s failure to make a reasonable
accommodation. 28 C.F.R. § 35.130(b)(7). The Complaint alleges that DLRS’s
decision was based on McAuliffe’s conclusion that Kelley was not able to supervise
children effectively because of her hearing loss. The Plaintiff does not use the term
“reasonable accommodation” in her Complaint, but she does allege that she
contacted McAuliffe multiple times in December of 2010, requesting that she be

11

given time to purchase new hearing aids.5 The ADA does not require the Plaintiff
to invoke any specific words to request accommodation. This is not a case where the
defendant did not know of the underlying disability or of the Plaintiff’s need and
desire for new hearing aids.6 Drawing all reasonable inferences in the Plaintiff’s
favor, the Court concludes that she has alleged facts sufficient to establish that she
asked DLRS for a reasonable accommodation of the licensing requirement—that is,
additional time to acquire necessary hearing aids.
3. Intentional Discrimination
Finally, the Defendants argue that the Plaintiff may not recover
compensatory damages because she has not plead that DLRS intentionally
discriminated against her. To recover compensatory damages under either Title II
or Section 504, a plaintiff must demonstrate that the state intentionally
discriminated against her and caused her economic harm. Nieves-Márquez, 353 F.3d
at 126.

The Defendants also argue in their reply that Kelley’s request for an accommodation, to the
extent it was one, was untimely because it came after she was terminated. Because this is not
technically an employment discrimination case, it is not appropriate to base Kelley’s termination
date as a cut-off. Kelley is alleging that DLRS is preventing her from working in any DLRS-licensed
day care center. As such, Kelley was not required to request the accommodation before her
termination.
5

6

The First Circuit has explained that:
In cases where the alleged violation involves the denial of a reasonable
modification/accommodation, “the ADA’s reasonable accommodation requirement
usually does not apply unless ‘triggered by a request.’” This is because a person’s
“disability and concomitant need for accommodation are not always known . . . until
the [person] requests an accommodation. However, “sometimes the [person]’s need
for an accommodation will be obvious; and in such cases, different rules may apply.”

Kiman v. N.H. Dep’t of Corrs., 451 F.3d 274, 283 (1st Cir. 2006) (footnote omitted) (quoting Reed v.
LePage Bakeries, Inc., 244 F.3d 254, 261 & n.7 (1st Cir. 2001)).

12

The Defendant argues intentional discrimination under Title II is measured
under a deliberate indifference standard. For this proposition, the Defendant cites a
prisoner case, Scott v. Androscoggin County Jail, 866 A.2d 88, 96 (Me. 2004)
(deliberate indifference for purposes of Title II requires that “defendant had
knowledge that a harm to a federally protected right was substantially likely, and
failed to act upon that likelihood”). “The First Circuit has yet to delineate the
standard by which intentional discrimination is measured.” Maine Human Rights
Comm’n v. Sunbury Primary Care, 770 F. Supp. 2d 370, 408 (D. Me. 2011). This
Court will sidestep the question of the intent required to establish compensatory
damages under Title II, because the Plaintiff, by any measure, has alleged enough
to defeat a motion to dismiss on this element. See id. (not necessary to choose
between deliberate indifference and intentional discrimination standards because
complaint sufficient under either standard); McKay v. Winthrop Bd. of Educ., No.
Civ. 96-131-B, 1997 WL 816505, at *2 (D. Me. June 6, 1997) (same).
The Complaint alleges that McAuliffe was aware of Kelley’s hearing loss and
that his determination that she could not be included as a staff member in the staffto-child ratio was based on her disability. The Complaint also alleges that when
Kelley finally learned of her impending termination, she repeatedly contacted
McAuliffe asking for more time to get hearing aids and her pleas were ignored.
Sonshine terminated Kelley and her ongoing eligibility to work in the child care
field is in question. From these allegations, the Court can draw the reasonable

13

inference that DLRS intentionally discriminated against the Plaintiff and that she
suffered economic harm.
The Plaintiff has set forth claims under Title II of the ADA. As previously
stated, the analysis of the claims under Section 504 of the Rehabilitation Act and
the MHRA follow the analysis used under Title II. Accordingly, the Defendant’s
motion to dismiss for failure to state a claim is denied on all counts.
II.

Eleventh Amendment Immunity
Because the Court finds that the Plaintiff survives the motion to dismiss for

failure to state a claim, it must consider the State’s argument that it is entitled to
Eleventh Amendment immunity on the Title II ADA claim. The Eleventh
Amendment 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.” U.S. Const. amend. XI. The amendment “guarantees that
private individuals may not sue nonconsenting states.” Toledo v. Sánchez, 454 F.3d
24, 31 (1st Cir. 2006). Although the Eleventh Amendment speaks in terms of suits
against a State by citizens of another State, the Supreme Court has made clear that
“this immunity also applies to unconsented suits brought by a State’s own citizens.”
Tennessee v. Lane, 541 U.S. 509, 517 (2004).
“Congress may abrogate the State’s Eleventh Amendment immunity.” Id. To
do so, Congress must: (1) unequivocally express its intent to abrogate the state’s
sovereign immunity; and (2) act pursuant to a valid exercise of its power under § 5

14

of the Fourteenth Amendment.7 Id. at 517-18. The first requirement is easily met.
Congress stated its express intent in § 12202: “A State shall not be immune under
the [E]leventh [A]mendment to the Constitution of the United States from an action
in Federal or State court of competent jurisdiction for a violation of this chapter.” 42
U.S.C. § 12202.
Even though Congress has stated its intent to abrogate state sovereign
immunity for all disability discrimination claims brought under the ADA, it has
only validly done so for two classes of ADA claims: (1) those alleging discrimination
that actually violates the Fourteenth Amendment; and (2) those alleging
discrimination that does not violate the Fourteenth Amendment but that Congress
may nonetheless prohibit because doing so will prevent and deter unconstitutional
discrimination. When considering an Eleventh Amendment immunity claim, the
Supreme Court has
[S]et forth a step-by-step analysis for Title II claims and explained that
lower courts should
determine . . . on a claim-by-claim basis, (1) which aspects
of the State’s alleged conduct violated Title II; (2) to what
extent such misconduct also violated the Fourteenth
Amendment; and (3) insofar as such misconduct violated
Title II but did not violate the Fourteenth Amendment,
whether Congress’s purported abrogation of sovereign
immunity as to that class of conduct is nevertheless
valid.8

“The Congress shall have the power to enforce, by appropriate legislation, the provisions of
this article.” U.S. Const. amend. XIV, § 5.
7

This third step, which deals with assessing legislation which proscribes facially
constitutional conduct, is referred to as the Boerne analysis because the test was first set forth in
City of Boerne v. P.F. Flores, 521 U.S. 507, 529-36 (1997).
8

15

Buchanan, 469 F.3d at 172 (quoting Georgia, 546 U.S. at 159).
A.

Whether State’s Conduct Violates Title II

The Court has already determined that the Plaintiff has stated a claim for an
ADA violation.
B.

Whether the State’s Conduct Violates the Plaintiff’s Rights
Under the Fourteenth Amendment

The Plaintiff describes the State’s conduct as follows:
In this case Maine’s Division of Regulatory Services, based on
her disability, conferred on Kelley an unfavorable status. The
unfavorable status was that she could not be counted in the staff to
child ratio at the nursery school where she had worked for 31 years.
This status cost her her job. Not only was she not told that this
unfavorable status had been conferred on her, once she learned of it
she was left with no way to appeal the status due to the fact that she
was not the licensee.
Pl.’s Opp’n to Defs.’ Mot. to Dismiss at 4-5. (ECF No. 6). She then argues:
Kelley’s right was fundamental. She was deprived of her
Fourteenth Amendment Due Process Rights. . . . [T]he regulations,
policies, and practices of Maine’s Division of Regulatory Services
resulted in her losing her job and left her without any opportunity to
be heard.
Id. at 5. Although she does not elaborate, Plaintiff is fairly asserting that the State
violated her procedural due process rights under the Fourteenth Amendment.10
1.

The Applicable Standards

In considering a procedural due process claim, the Court must first determine
whether there is a constitutionally protected liberty or property interest at stake.

Although the Plaintiff describes her right as “fundamental,” she does not precisely identify
the right at issue and does not present a cogent legal theory under a substantive due process
analysis.
10

16

See Clukey v. Town of Camden, 717 F.3d 52, 55 (1st Cir. 2013). As the Supreme
Court has noted:
“Liberty” and “property” are broad and majestic terms. They are among the
“[g]reat [constitutional] concepts . . . purposely left to gather meaning from
experience. . . . [T]hey relate to the whole domain of social and economic fact,
and the statesmen who founded this Nation knew too well that only a
stagnant society remains unchanged.”
Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 571 (1972) (quoting Nat’l Mut.
Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 646 (1949) (Frankfurter, J.,
dissenting)).
The Supreme Court recognized a constitutionally protected liberty interest
for individuals who are stigmatized by the action of government officials in
Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971).11 There, the Court stated:
“Where a person’s good name, reputation, honor or integrity is at stake because of
what the government is doing to him, notice and an opportunity to be heard are
essential.” Id. However, in Paul v. Davis, 424 U.S. 693, 701-02 (1976),12 the
Supreme Court made clear that mere defamation was insufficient to establish a
violation of a constitutionally protected liberty interest. Instead, a litigant must
show stigmatization plus some type of “change in the injured person’s status or
rights under substantive state or federal law.” Silva v. Worden, 130 F.3d 26, 32 (1st
Cir. 1997). This has come to be known as the “stigma plus” standard. URI Student
Constantineau involved a Wisconsin statute which allowed the police chief to “post” a notice
forbidding the sale of liquor to specified individuals. Constantineau, 400 U.S. at 434-35.
Constantineau suffered that indignity and challenged the constitutionally of the statute. Id. Because
the statute contained no provision for notice or a hearing, it was struck down as facially
unconstitutional. Id. at 437-39.
11

Paul involved a plaintiff whose name and photograph appeared on a flyer captioned “Active
Shoplifters.” Paul, 424 U.S. at 694-96.
12

17

Senate v. Town of Narragansett, 631 F.3d 1, 9 (1st Cir. 2011). To sustain a claim
under this standard, a plaintiff must also show that a government actor
“disseminat[ed]” a defamatory charge against her “in a formal setting.” Silva, 130
F.3d at 32-33.
In Mead v. Independence Association, 684 F.3d 226 (1st Cir. 2012), the First
Circuit considered two related theories potentially applicable here: that a claimant
in a stigma plus case may establish the necessary “plus” by showing either that the
government effectively excluded her from a profession by implementing a de facto
licensing scheme or that the stigma in question burdened her future employment
prospects. Mead, 684 F.3d at 233-36.
Mead was the administrator of fifteen assisted-living facilities managed by
Independence Association (IA), a private not-for-profit organization licensed by
DLRS (coincidentally, the same defendant as in this case). Id. at 229-30. After
DLRS completed an unannounced survey of Goldeneye Residence, one of the IA
facilities administered by Mead, the licensor determined that Mead had failed to
take appropriate action against an employee who was abusing prescription
medications. Id. at 230. DLRS sent IA findings of fact laying out its accusations and
an order compelling IA to replace Mead as Goldeneye’s administrator. Id. Rather
than appeal, as Mead urged, IA hired an independent investigator to look into the
charges and explore other aspects of Mead’s job performance. Id. The investigator
recommended Mead be let go, based both on DLRS’s charges and unrelated
problems with Mead’s management style, and IA terminated her. Id. Mead applied

18

for positions at other assisted care facilities licensed by DLRS, but those employers
declined to hire her after learning about DLRS’s handling of the Goldeneye affair.
Id.
Mead put forth three theories as to how the facts of her case established the
“plus” part of the stigma plus doctrine: (1) the loss of her job; (2) the burdening of
her future employment prospects; and (3) the loss of a de facto occupational license.
Considering these theories in light of the facts before it, the First Circuit rejected
Mead’s claim. Id. at 232. The First Circuit first determined that Mead’s loss of a job
could not be a “plus” in her case, both because DLRS never compelled her firing,
even indirectly, and because her job with a private employer “was not a government
benefice.” Id. at 233-34. Though DLRS compelled her replacement as Goldeneye’s
administrator, it did not compel Mead’s termination or her removal from the
fourteen other IA assisted-living facilities she administered. Id.
Likewise, the First Circuit decided that to the extent that Mead’s future
employment prospects had “dimmed, the damage is solely the result of harm to her
reputation, not some statutory impediment or other legal obstacle to her
employment.” Id. at 235. The Mead court pointed to Valmonte v. Bane, 18 F.3d 992
(2d Cir. 1994), a Second Circuit case that held that there is a viable “plus” factor
where damages flow not merely from a reputational injury and its predictable
consequences, but from a concrete legal impediment triggered by the reputational
injury. Valmonte, 18 F.3d at 1001-02. In Valmonte, the state included a child care
worker’s name on a government registry of child abusers. Id. at 994-96. A state

19

statute required potential employers to consult the registry and explain in writing if
they decided to hire any individual on the list. Id. at 996. The Second Circuit found
that the plaintiff satisfied the stigma plus standard. Id. at 999-1002.
The Mead court also noted that other circuits have reasoned that “a de facto
licensing scheme may exist” “when a government body controls entry into a
profession through means short of the issuance of a formal license.” Mead, 684 F.3d
at 234. “If we were to follow these circuits,” the Mead court continued, “there might
be some force to Mead’s argument that a de facto license is a government benefice”
and “the revocation of a de facto license . . . might be a valid ‘plus’ insofar as it
‘effects a change in the injured person’s status or rights under substantive state or
federal law.’” Id. (quoting Silva, 130 F.3d at 32). The First Circuit sidestepped the
question because DLRS barred Mead only from administering Goldeneye but took
no action to prevent her from working at any other facility run by IA or its
competitors. Id. at 235.
While Mead is a liberty interest case, the case law suggests the line between
liberty interests and property interests is, at best, a fuzzy one, and it is possible
that a property interest analysis could apply in de facto licensing cases. For
instance, in Mertik v. Blalock, 983 F.2d 1353 (6th Cir. 1993), a case Mead relies on,
the Sixth Circuit found both a liberty interest and a property interest in a skating
instructor’s privileges to hold teaching sessions at a public ice rink. Mertik, 983 F.2d
at 1359-64. In Phillips v. Vandygriff, 711 F.2d 1217 (5th Cir. 1983), another case
Mead relies on, the Fifth Circuit analyzed a de facto licensing scheme under a

20

liberty interest rubric, but also commented that “the difference between formal
licensing and de facto licensing [is] unimportant.” Phillips, 711 F.2d at 1223. Since
formal licensing is typically analyzed as a property interest, it might make sense to
analyze de facto licensing the same way.18 Likewise, if “a de facto license is a
government benefice” similar to a “government job,” as Mead suggests, it stands to
reason that revoking a de facto license implicates a constitutionally protected
property interest. Mead, 684 F.3d at 234. Under such an analysis, the “stigma”
element would likely fall away, and the focus would instead be on whether the
plaintiff had a “legitimate claim of entitlement” to the de facto license in question.
See Clukey, 717 F.3d at 55.
Generally, an individual has a “legitimate claim of entitlement” in a benefit
where the decision to grant or deny it is limited by “‘specific conditions’” provided for
under “‘substantive state or federal law,’” but not “‘if government officials may grant
or deny it in their discretion.’” Id. at 56 (quoting, respectively, Colburn v. Trs. of
Ind. Univ., 973 F.2d 281, 589 (7th Cir. 1992), Beitzell v. Jeffrey, 643 F.2d 870, 874
(1st Cir. 1981), and Town of Castle Rock v. Gonzalez, 545 U.S. 748, 776 (2005)); see
also Perry v. Sindermann, 408 U.S. 593, 599-604 (1972) (de facto tenured state
employee had a constitutionally protected property interest in his job, as his
supervisor could decide not to re-hire him only after reaching a finding that his

See, e.g., Barry v. Barchi, 443 U.S. 55 (1979) (license to train harness-racing horses);
Beauchamp v. De Abadia, 779 F.2d 773, 775 (1st Cir. 1985) (license to practice medicine); GonzálezDroz v. González-Colón, 660 F.3d 1, 13 (license to practice cosmetic surgery); Guillemard-Ginorio v.
Contreras Gomez, 161 Fed. Appx. 24, 28 (1st Cir. 2005) (license to sell insurance); Amsden v. Moran,
904 F.2d 748, 752 (1st Cir. 1990) (strongly suggesting that property interest existed in license to
survey land).
18

21

work fell below a standard provided for by substantive state law); Roth, 408 U.S. at
576-578 (at-will state employee did not have a constitutionally protected property
interest in his job as his supervisor could decide not to re-hire him for any reason).
The source of “substantive state or federal law” which bounds the discretion of the
government may be a statute, a regulation, an employment contract, or even a
common understanding that can be traced back to government action. See Barry,
443 U.S. at 38-60, 64; Perry, 408 U.S. at 602.
Once a constitutionally protected property or liberty interest is identified, the
Court must then determine how much process is due before the government may
lawfully deprive an individual of that interest. Regardless of whether the interest is
identified as a liberty or a property interest, due process, at a minimum, requires
notice and an opportunity to be heard. Clukey, 717 F.3d at 59 (property interest);
Constantineau, 400 U.S. at 436-37 (liberty interest).
2.

Application of the Law to the Facts Alleged

The Defendants contend that because Kelley was an at-will employee
working for a private entity, she cannot have a constitutionally protected property
interest in her job. That may be true, but it is also beside the point. Fairly
considered, the Plaintiff’s argument is not that she has a constitutionally protected
property interest in her job, but rather that she has a constitutionally protected
interest in her status as an individual who will “count” when DLRS calculates the
staff-to-child ratios of the child care centers it licenses. The Plaintiff’s allegation
that DLRS “conferred . . . an unfavorable status” on her without due process

22

amounts to a claim that DLRS unlawfully deprived her of a constitutionally
protected liberty interest in her job-related reputation and that that deprivation
worked a change in her legal rights. Accordingly, we apply the stigma plus standard
laid out in Mead to her claim.
As for the stigma portion of the test, the Court infers that McAuliffe was
applying DLRS regulations when he made the determination that Kelley could not
“count” toward the staff-to-child ratio. The Complaint alleges that “the relevant
regulations” regarding DLRS’s determination of staff-to-child ratios “do not require
that child care staff be able to hear,” but rather “require staff to provide safe and
compassionate services” and “state that each child shall be supervised by a staff
member who is aware of and responsible for the ongoing activity of each child and
who is near enough to the child to intervene when needed.” Compl. ¶ 19. Drawing
all reasonable inferences in the Plaintiff’s favor, DLRS’s conclusion that the
Plaintiff could not “count” amounted to a factual finding that the Plaintiff is
incapable of providing children “safe and compassionate services” and of remaining
“aware of and responsible for the ongoing activity” of the children in her care. This
is essentially a determination that she is incompetent at her job, despite 31 years of
service to Sonshine. While less inflammatory than the accusations in some of the
stigma plus cases—for instance, no one accuses the Plaintiff of abusing children, as
in Valmonte, 18 F.3d at 1001-02—DLRS’s finding amounts to legally cognizable
stigmatization. See, e.g., Roth, 408 U.S. at 573 (suggesting that a constitutionally
protected interest is implicated where “the State . . . impose[s] . . . a stigma or other

23

disability that foreclose[s] [an individual’s] freedom to take advantage of other
employment opportunities”); Donato v. Plainview-Old Bethpage Cent. Sch. Dist., 96
F.3d 623, 630-31 (6th Cir. 1996) (explaining that “governmental allegations of
professional incompetence” implicate a constitutionally protected liberty interest
“when they denigrate the employee’s competence as a professional . . . in such a
fashion as to effectively put a significant roadblock in that employee’s continued
ability to practice his or her profession”). Further, DLRS both disseminated this
determination (it told the Plaintiff’s employer and would presumably tell any other
child care center that tried to hire her) and did so in a relatively formal setting (in
the course of conducting its formal facility-by-facility licensing process).
Kelley has also alleged facts which satisfy the “plus” factor under either the de
facto licensing theory or the “tangible burdens on future employment prospects”
theory discussed in Mead. Though the First Circuit has not yet formally adopted
either theory, both describe situations which effect “a change in [an] injured
person’s status or rights under substantive state or federal law” and therefore
satisfy the “plus” factor inquiry. See Silva, 130 F.3d at 32-33.
Regarding the de facto license theory, when the Plaintiff lost her status as a
person who “counts” under DLRS regulations, she became effectively unemployable
in her chosen profession. Id.

Maine child care facilities are not multinational

corporations. The Court can infer that Sonshine and other DLRS-licensed child care
facilities cannot afford to carry additional staff and that an individual determined

24

not to “count” in DLRS’s staff-to-child ratios is effectively locked out of the field.24
Accordingly, unlike Mead, the facts here do allege that “a government body controls
entry into a profession through means short of the issuance of a formal license.”25
Mead, 684 F.3d at 234.
The analysis is much the same under the “tangible burdens on future
employment prospects” theory. DLRS’s determination that the Plaintiff cannot
“count” would presumably apply if she attempted to find employment with another
child care center licensed by DLRS. Accordingly, another child care center would
face the same government-compelled choice Sonshine did: risk losing its license, pay
two people for the same work, or pass on employing the Plaintiff altogether. This is
just the sort of legal obstacle required to make out the “plus” factor under the
“tangible burdens on future employment prospects” theory. See Mead, 684 F.3d at
236. Unlike in Mead, the harm flows not merely from a reputational injury, but
from a concrete legal impediment triggered by a government-imposed stigma.
Accordingly, based on the facts alleged in her Complaint, the Plaintiff has
identified a constitutionally protected interest.
3.

The Process Due

In this sense, the Plaintiff’s case is similar to Greene v. McElroy, 360 U.S. 474, 492 (1959),
where the Supreme Court suggested that an aeronautical engineer likely had a constitutionally
protected interest in a security clearance necessary for his job with a private contractor, without
which “‘he [was] effectively barred from pursuit of many aspects of his profession . . . .” Id. at 491
n.21 (quoting Greene v. McElroy, 254 F.2d 944, 952 (D.C. Cir. 1958)).
24

If a de facto license can be analyzed as a property interest, the question would be merely
whether the plaintiff had a legitimate claim of entitlement to the de facto license. The Plaintiff likely
would be able to make this showing. The licensing rules promulgated by DLRS clearly constitute
substantive state law. Additionally, they appear to provide definite criteria which limits DLRS’s
discretion: only individuals not capable of “provid[ing] safe and compassionate services” or “being
aware of and responsible for the ongoing activity of” twelve children can be stripped of their status as
individuals who “count.”
25

25

The final issue, then, is how much process the Plaintiff was due and whether
or not she was afforded that process. Here, the inquiry is straightforward. Under
the facts alleged, DLRS gave the Plaintiff no process whatsoever—it never notified
her that her status was under review, never gave her a chance to make her case,
and never told her that it had made a decision. Because DLRS has so far failed to
respond to the Plaintiff’s requests for accommodation or even acknowledged that it
engaged in an individualized assessment of her qualifications, the Plaintiff could
not appeal the decision, and her ability to work at a child care facility in Maine
remains under a cloud.26 Since “the Constitution requires, at a minimum, some kind
of notice and some kind of opportunity to be heard,” the Plaintiff’s allegations make
out a violation of her procedural due process rights under the Fourteenth
Amendment. Clukey, 717 F.3d at 59 (property interests); see also Constantineau,
400 U.S. at 436-37 (reputational liberty interests).

The Defendants assert that the Plaintiff has failed to “allege any facts that suggest a
continuing violation of federal law” and her claim for injunctive relief is therefore moot. Defs’ Reply
at 2 (ECF No. 7). The Defendants’ argument, which is not supported with any meaningful discussion
of the case law on mootness, is unavailing. In Super Tire Engineering Co. v. McCorkle, 416 U.S. 116
(1974) the Supreme Court explained that a case remains justiciable where a “challenged government
activity is not contingent, has not evaporated or disappeared, and, by its continuing and brooding
presence, casts what may well be a substantial adverse effect on the interests of the petitioning
parties.” McCorkle, 416 U.S. at 122 (employer’s suit for a declaratory judgment that state regulations
permitting striking workers to receive public assistance violated the Supremacy Clause was not moot
even though strike had ended, because the issue could substantially affect future labor negotiations
between the parties); see also ConnAire, Inc. v. Sec’y, U.S. Dep’t of Transp., 887 F.2d 723 (6th Cir.
1989) (commercial airline’s appeal of decision to suspend its operating certificate for 120 days not
moot even though airline had served entire suspension, because suspension could affect its future
relationship with the agency); Allende v. Shultz, 624 F. Supp. 1063, 1064-66 (D. Ma. 1985) (Chilean
political figure’s suit for a declaratory judgment that the government’s denial of her application for a
travel visa in 1983 was unlawful was not moot even though the government granted the political
figure a travel visa in 1985, because the government might deny the political figure a visa in the
future on the same grounds). Given that the Plaintiff’s ability to “count” in DLRS’s staff-to-child ratio
calculations remains in doubt and given that DLRS has so far failed to respond to her pleas for
reconsideration, this is such a case.
26

26

There is one important caveat. The Eleventh Amendment analysis is based
on the Court’s determination that the Complaint, with all inferences made in the
Plaintiff’s favor, alleges conduct by the State which violated Plaintiff’s Fourteenth
Amendment rights. Should, after discovery, the facts establish that the State’s
conduct was different than alleged, it is possible that the State’s conduct did not
violate the Plaintiff’s Fourteenth Amendment rights. This may be what the First
Circuit was intimating in Buchanan when it noted:
It may be difficult in some instances to determine on motions under
Rule 12(b)(6) whether plaintiff’s complaint stated a viable Title II
claim. That is so because of both the generous notice pleading rules in
federal practice and the rule that no greater pleading requirements are
imposed on civil rights plaintiffs. As a result, there may need to be
further specificity about the precise nature of the plaintiff’s claims and
some discovery after the suit begins. Title II may be constitutional at
least for claims “against the States for conduct that actually violates
the Fourteenth Amendment.” This again demands some greater
specificity as to the alleged Title II claims.
Buchanan, 469 F.3d at 172 n.8 (citations omitted) (quoting Georgia, 546 U.S. at
159).
B.

Has Congress Abrogated Sovereign Immunity Under the
Boerne Analysis

Because the Court concludes that the State’s conduct, as alleged, violated the
Fourteenth Amendment, it need not at this time address the question of whether
Title II constitutes “prophylactic legislation that proscribes facially constitutional
conduct, in order to prevent and deter unconstitutional conduct.” Nev. Dep’t of
Human Res. v. Hibbs, 538 U.S. 721, 727-28 (2003).27 Nor does the Court need to

27

The First Circuit described the test under Boerne, 521 U.S. at 529-36, as follows:

27

address the Plaintiff’s argument that the Ex Parte Young doctrine applies to avoid
an Eleventh Amendment bar to suit.28 Because the nature of the Court’s ruling may
depend on how the Plaintiff’s claims evolve over the course of discovery, the Court
will allow the Plaintiff to proceed, but will allow the State to reassert its Eleventh
Amendment immunity claim should the facts warrant.
Conclusion
The Defendants’ Motion to Dismiss for failure to state a claim is DENIED.
The Defendant’s Motion to Dismiss Count Two for lack of jurisdiction and
Defendant’s Motion to Dismiss claims against Defendant Mayhew as a duplicative

To determine whether prophylactic legislation under § 5 is valid, a court must
consider: (1) the constitutional right or rights that Congress sought to protect when it
enacted the statute; (2) whether there was a history of constitutional violations to
support Congress’s determination that prophylactic legislation was necessary; and (3)
whether the statute is a congruent and proportional response to the history and
pattern of constitutional violations.
Toledo, 454 F.3d at 34-35 (citing Lane, 541 U.S. at 522-31). Compare Guttman v. Khalsa, 669 F.3d
1101 (10th Cir. 2012) (no abrogation of sovereign immunity under Title II in licensing context) with
Lamberson Reynolds v. Pennsylvania, No. 3:09cv1492, 2010 WL 2572798 (M.D. Pa. June 21, 2010)
(valid abrogation of sovereign immunity under Title II in the licensing context).
Ex Parte Young, 209 U.S. 123 (1908) (Eleventh Amendment does not bar suits by individuals
against state officers for declaratory or injunctive relief); Idaho v. Coeur d’Alene Tribe, 521 U.S. 261,
289 (1997) (federal court has jurisdiction over a suit against a state officer to enjoin official actions
that violate federal law where a plaintiff seeks prospective relief to end a state officer’s ongoing
violation of federal law) (O’Connor, J., concurring in part and concurring in judgment); see also Bd.
Of Trs. Of Univ. of Ala. v. Garrett, 531 U.S. 356, 473 n.9.
28

28

Defendant are DENIED without prejudice to the Defendants’ right to reassert
these claims at a later point in the proceedings.
SO ORDERED.
Dated this 23rd day of September, 2013.
/s/ Nancy Torresen
United States District Judge

29