Emery v. Michigan Department of Civil Rights et al
OPINION and ORDER Regarding Defendant's Motions to Dismiss re: 5 Motion to Dismiss, 10 Motion to Dismiss, 17 Motion to Dismiss. Signed by District Judge Gerald E. Rosen. (JOwe)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 15-11467
Hon. Gerald E. Rosen
MICHIGAN DEPARTMENT OF CIVIL
RIGHTS, MATTHEW WESAW, and
OPINION AND ORDER REGARDING
DEFENDANTS’ MOTIONS TO DISMISS
At a session of said Court, held in
the U.S. Courthouse, Detroit, Michigan
March 21, 2016
Honorable Gerald E. Rosen
United States District Judge
Plaintiff Sheryl Emery commenced this action in this Court on April 22,
2015, asserting claims under the federal Americans with Disabilities Act (“ADA”),
42 U.S.C. § 12101 et seq., and Michigan’s Elliott-Larsen Civil Rights Act
(“ELCRA”), Mich. Comp. Laws § 37.2101 et seq., against her former employer,
the Michigan Department of Civil Rights (“MDCR”) and two of her former
supervisors at the MDCR, Matthew Wesaw and Lori Vinson. In support of these
claims, Plaintiff alleges that Defendants (i) failed to accommodate her disability as
a deaf individual, (ii) retaliated against her filing of a complaint with the Equal
Employment Opportunity Commission (“EEOC”) protesting this failure to
accommodate her disability, and (iii) discriminated against her on account of her
age and race. This Court’s subject matter jurisdiction rests upon Plaintiff’s
assertion of claims arising under federal law. See 28 U.S.C. § 1331.
Over the next several months following her commencement of this suit,
Plaintiff served process on the three Defendants in a piecemeal fashion. Upon
being served with the complaint, each of the three Defendants has brought a
motion seeking the dismissal of some or all of the claims asserted against this
particular Defendant. Each of these motions rests principally on the immunity
conferred upon the states under the Eleventh Amendment to the U.S. Constitution,
although the two individual Defendants further contend that they do not qualify as
“employers” under the federal ADA, and thus cannot be held individually liable
under this statute.
Plaintiff has filed a response in opposition to each Defendant’s motion to
dismiss. Having reviewed the parties’ briefs in support of and in opposition to
Defendants’ motions, as well as the accompanying exhibits and the remainder of
the record, the Court finds that the pertinent facts, allegations, and legal issues are
adequately presented in these written submissions, and that oral argument would
not assist in the resolution of these motions. Accordingly, the Court will decide
Defendants’ motions “on the briefs.” See Local Rule 7.1(f)(2), U.S. District Court,
Eastern District of Michigan. As explained below, the Court finds that the bulk of
Plaintiff’s claims are subject to dismissal, but that Plaintiff may proceed with (i)
her ADA claims against the individual Defendants in their official capacities, to the
extent Plaintiff seeks non-monetary relief from these Defendants, and (ii) her statelaw ELCRA claims against the individual Defendants.
The Standards Governing Defendants’ Motions
Through their present motions, the three Defendants seek the dismissal
under Fed. R. Civ. P. 12(b)(1) and 12(b)(6) of certain of the claims asserted by
Plaintiff. When considering a motion brought under Rule 12(b)(1) mounting a
facial challenge to the existence of subject matter jurisdiction, the Court “takes the
allegations in the complaint as true,” inquiring whether these allegations establish a
basis for the exercise of subject matter jurisdiction. Gentek Building Products, Inc.
v. Steel Peel Litigation Trust, 491 F.3d 320, 330 (6th Cir. 2007). Yet, “conclusory
allegations or legal conclusions masquerading as factual conclusions will not
suffice” to withstand a properly supported Rule 12(b)(1) motion to dismiss.
O’Bryan v. Holy See, 556 F.3d 361, 376 (6th Cir. 2009) (internal quotation marks
and citation omitted).
To the extent that Defendants contend that certain of Plaintiff’s claims are
subject to dismissal under Rule 12(b)(6) for failure to state a claim, the Court must
construe the complaint in a light most favorable to Plaintiff and accept all wellpled factual allegations as true. League of United Latin American Citizens v.
Bredesen, 500 F.3d 523, 527 (6th Cir. 2007). Yet, “the tenet that a court must
accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009).
Moreover, “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, 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.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65 (2007) (internal
quotation marks, alteration, and citations omitted). Rather, to withstand a motion
to dismiss, the complaint’s factual allegations, accepted as true, “must be enough
to raise a right to relief above the speculative level,” and to “state a claim to relief
that is plausible on its face.” Twombly, 550 U.S. at 555, 570, 127 S. Ct. at 1965,
1974. “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949.
Eleventh Amendment Immunity Bars Plaintiff’s Federal ADA Claims
Against the Defendant State Agency, the MDCR, As Well As Plaintiff’s
ADA Claims for Money Damages Brought Against the Individual
Defendants in Their Official Capacities.
In challenging the viability of Plaintiff’s federal ADA claims, Defendants
appeal principally to the immunity conferred under the Eleventh Amendment to the
U.S. Constitution. As the Supreme Court has explained, “[t]he ultimate guarantee
of the Eleventh Amendment is that non-consenting States may not be sued by
private individuals in federal court.” Board of Trustees of the University of
Alabama v. Garrett, 531 U.S. 356, 363, 121 S. Ct. 955, 962 (2000). Although
“Congress may abrogate the States’ Eleventh Amendment immunity when it both
unequivocally intends to do so and acts pursuant to a valid grant of constitutional
authority,” and although Congress plainly expressed its intention to abrogate this
immunity with respect to claims brought under the ADA, the Court held in Garrett
that Congress did not “act within its constitutional authority by subjecting the
States to suits in federal court for money damages under [Title I of] the ADA.”
Garrett, 531 U.S. at 360, 363-64, 121 S. Ct. at 960, 962 (internal quotation marks,
alteration, and citations omitted).
In light of the ruling in Garrett, it is clear that Plaintiff’s ADA claims
against Defendant MDCR are barred by Eleventh Amendment immunity, and
Plaintiff does not seriously contend otherwise. First, the MDCR states without
contradiction that it is eligible for Eleventh Amendment immunity as an agency of
the State of Michigan. Next, the failure to accommodate claim asserted in count I
of Plaintiff’s complaint arises under Title I of the ADA, and thus is squarely
governed by Garrett’s holding that Congress did not validly abrogate the states’
Eleventh Amendment immunity with respect to claims for money damages brought
under Title I of the ADA.
As for the claim in count II of the complaint that Defendants violated the
ADA by retaliating against Plaintiff’s exercise of rights and privileges protected by
this statute, neither the Supreme Court nor the Sixth Circuit has yet determined
whether Eleventh Amendment immunity bars such claims of retaliation brought
under Title V of the ADA. Nonetheless, the Ninth Circuit has reasoned that “the
Court’s holding [in Garrett] necessarily applies to claims brought under Title V of
the ADA,” at least so long as these claims are “ predicated on alleged violations of
Title I.” Demshki v. Monteith, 255 F.3d 986, 988 (9th Cir. 2001). Because
Plaintiff’s ADA claim of retaliation is predicated on actions she took to complain
of or oppose an alleged violation of Title I of the ADA — namely, the alleged
failure to accommodate Plaintiff’s disability that forms the basis for count I of the
complaint — this Court concurs in Demshki’s reasoning that the ruling in Garrett
applies with equal force to bar both the Title I and Title V claims asserted by
Plaintiff against Defendant MDCR. Certainly, Plaintiff has made no effort to argue
that the Court should treat her two ADA claims differently for purposes of its
Eleventh Amendment immunity analysis.
Next, the Court readily concludes that the ADA claims asserted by Plaintiff
against the individual Defendants, Matthew Wesaw and Lori Vinson, are likewise
barred by Eleventh Amendment immunity, at least insofar as Plaintiff has sued
these individuals in their official capacities and seeks an award of money damages.
As the Sixth Circuit has recognized, to the extent that the Eleventh Amendment
immunizes a state from a federal court suit, this immunity extends as well to claims
in the suit that are brought “against state officials sued in their official capacity for
money damages.” Ernst v. Rising, 427 F.3d 351, 358 (6th Cir. 2005). This follows
readily from the principle that “an official capacity suit is, in all respects other than
name, to be treated as a suit against the [governmental] entity” for which the
official serves as an agent. Kentucky v. Graham, 473 U.S. 159, 166, 105 S. Ct.
3099, 3105 (1985); see also Cady v. Arenac County, 574 F.3d 334, 342 (6th Cir.
2009) (noting that “a lawsuit against an officer in his official capacity and against
the governmental entity [for which he serves] . . . are functionally the same and
should therefore be subjected to the same analysis”). Consequently, the same
Eleventh Amendment immunity that bars Plaintiff’s ADA claims against the
MDCR likewise precludes her from pursuing ADA claims for money damages
against Defendants Wesaw and Vinson in their official capacities.
To the extent that Plaintiff means to take issue with this Eleventh
Amendment analysis, she appeals solely to a passage in Garrett noting the limits of
the Court’s ruling in that case:
Our holding here that Congress did not validly abrogate the
States’ sovereign immunity from suit by private individuals for money
damages under Title I does not mean that persons with disabilities
have not federal recourse against discrimination. Title I of the ADA
still prescribes standards applicable to the States. Those standards can
be enforced by the United States in actions for money damages, as
well as by private individuals in actions for injunctive relief under Ex
parte Young, 209 U.S. 123, 28 S.Ct. 441, 521 L.Ed. 714 (1908). In
addition, state laws protecting the rights of persons with disabilities in
employment and other aspects of life provide independent avenues of
Garrett, 531 U.S. at 374 n.9, 121 S. Ct. at 968 n.9 (citation omitted). Plaintiff
notes that her prayer for relief includes requests for injunctive relief, and she
suggests that she therefore is entitled to seek this form of redress from each of the
Defendants, including the MDCR, for their alleged ADA violations.
This argument, however, misapprehends Garrett’s reference to the relief
available under Ex parte Young. The Sixth Circuit has emphasized that Ex parte
Young authorizes “an injunction against a state official who has acted
unconstitutionally,” but does not overcome the Eleventh Amendment immunity
that “prohibits a federal court from granting even this [injunctive] relief against a
state or a state agency.” Freeman v. Michigan Department of State, 808 F.2d
1174, 1179 (6th Cir. 1987); see also Pennhurst State School & Hospital v.
Halderman, 465 U.S. 89, 101-02, 104 S. Ct. 900, 908-09 (1984) (explaining that
“when the State itself is named as the defendant, a suit against state officials that is
in fact a suit against a State is barred regardless of whether it seeks damages or
injunctive relief,” and characterizing Ex parte Young as an “exception to this
general rule” which holds that “a suit challenging the constitutionality of a state
official’s action is not one against the State” and thus is not barred by the Eleventh
Amendment). Notwithstanding Ex parte Young, then, the state agency in this case,
Defendant MDCR, enjoys Eleventh Amendment immunity from Plaintiff’s ADA
claims in their entirety, without regard for the relief sought by Plaintiff. See Cady,
574 F.3d at 344; Freeman, 808 F.2d at 1179.
Perhaps, however, Plaintiff views the above-quoted passage from Garrett as
supporting a more limited proposition — namely, that Eleventh Amendment
immunity does not prevent her from pursuing her ADA claims against the
individual Defendants in their official capacities, at least insofar as she seeks
injunctive relief rather than an award of money damages as redress for the ADA
violations allegedly committed by these state officials. If so, the Court readily
agrees, as does the Sixth Circuit. See Whitfield v. Tennessee, 639 F.3d 253, 257
(6th Cir. 2011) (recognizing that the plaintiff’s claim in that case under Title I of
the ADA “survives the Eleventh Amendment only to the extent that it constitutes
an Ex parte Young action for prospective injunctive relief”); Cady, 574 F.3d at 344
(“The Supreme Court recognizes an exception to this rule [of Eleventh Amendment
immunity] if an official-capacity suit seeks only prospective injunctive or
declaratory relief.”); Ernst, 427 F.3d at 358 (observing that a state’s Eleventh
Amendment immunity “does not apply if the lawsuit is filed against a state official
for purely injunctive relief enjoining the official from violating federal law”).
More importantly, Defendants themselves recognize in their motions that the
ADA claims asserted against Defendants Wesaw and Vinson in their official
capacities are subject to dismissal only “with respect to monetary damages.”
(Defendant Wesaw’s Motion to Dismiss, Br. in Support at 2; see also Defendant
Vinson’s Motion to Dismiss, Br. in Support at 2.) Accordingly, the Court agrees
with Defendants that Plaintiff’s ADA claims against Defendant MDCR are barred
in their entirety by Eleventh Amendment immunity, and that the ADA claims
asserted against Defendants Wesaw and Vinson in their official capacities likewise
are barred by Eleventh Amendment immunity, but only to the extent that Plaintiff
seeks money damages under these official-capacity claims.
The Individual Defendants Are Not Subject to Personal Liability Under
Although Plaintiff’s complaint is not altogether clear on this point, it appears
that she means to sue Defendants Wesaw and Vinson in both their official and their
individual capacities. As explained, Plaintiff may recover only injunctive relief,
and not money damages, in her official-capacity claims against these two
Defendants under the ADA. As for Plaintiff’s ADA claims against these two
Defendants in their individual capacities, Defendants Wesaw and Vinson argue
that the ADA does not authorize the imposition of liability upon individuals. The
The Sixth Circuit has “held repeatedly that the ADA does not permit public
employees or supervisors to be sued in their individual capacities.” Williams v.
McLemore, No. 05-2678, 247 F. App’x 1, 8 (6th Cir. June 19, 2007); see also
Sullivan v. River Valley School District, 197 F.3d 804, 808 n.1 (6th Cir. 1999)
(“Individual supervisors who do not independently qualify under the statutory
definition of employers may not be held personally liable in ADA cases.”); Lee v.
Michigan Parole Board, No. 03-1775, 104 F. App’x 490, 493 (6th Cir. June 23,
2004). Against these controlling precedents, Plaintiff cites the decision in Hafer v.
Melo, 502 U.S. 21, 112 S. Ct. 358 (1991), as purportedly allowing for the
imposition of individual liability on Defendants Wesaw and Vinson “in Federal
court for monetary damages.” (Plaintiff’s Response to Defendant Wesaw’s
Motion, Br. in Support at 6.) Yet, Hafer addresses the liability of state officials
sued in their individual capacities under 42 U.S.C. § 1983, see Hafer, 502 U.S. at
22-23, 112 S. Ct. at 360, and has nothing to say about the scope of the individuals
or entities that are subject to liability under the ADA. Under binding Sixth Circuit
precedent, the ADA does not impose personal liability on supervisory officials
such as Defendants Wesaw and Vinson who are sued in their individual capacities.
Eleventh Amendment Immunity Bars Plaintiff’s State-Law Claims
Against the Defendant MDCR and Against Defendants Wesaw and
Vinson in Their Official Capacities.
In counts III and IV of her complaint, Plaintiff asserts state-law claims of
age and race discrimination under Michigan’s Elliott-Larsen Civil Rights Act
(“ELCRA”), Mich. Comp. Laws § 37.2101 et seq. Defendants argue that these
state-law claims are barred by Eleventh Amendment immunity as to (i) the
Defendant state agency, the MDCR, and (ii) Defendants Wesaw and Vinson sued
in their official capacities. The Court agrees, finding once again that Defendants’
positions on these points enjoy the support of binding precedent.
Turning first to Plaintiff’s state-law ELCRA claims against Defendant
MDCR, the Sixth Circuit has observed that “the States’ constitutional [Eleventh
Amendment] immunity from suit prohibits all state-law claims filed against a State
in federal court, whether those claims are monetary or injunctive in nature.” Ernst,
427 F.3d at 368; see also Freeman, 808 F.2d at 1179 (explaining that Michigan’s
enactment of the ELCRA did not operate to waive the state’s Eleventh Amendment
immunity, as it did not “establish that [the state] has agreed to become a defendant
in federal court suits based on violations of either state or federal law”).
Accordingly, Plaintiff’s state-law ELCRA claims against Defendant MDCR are
barred by Eleventh Amendment immunity, and Plaintiff does not contend
otherwise in her response to the MDCR’s motion.
The pertinent case law likewise confirms that the Eleventh Amendment bars
Plaintiff’s state-law ELCRA claims brought against Defendants Wesaw and
Vinson in their official capacities. As explained earlier, for purposes of Eleventh
Amendment immunity, a claim asserted against a state officer in his official
capacity is functionally equivalent to a claim asserted against the state itself. See
Graham, 473 U.S. at 166, 105 S. Ct. at 3105; Cady, 574 F.3d at 342. The sole
exception to this rule — i.e., an official-capacity claim for injunctive relief under
Ex parte Young — does not apply to claims alleging non-compliance with state
law. See Ernst, 427 F.3d at 368-69; Freeman, 808 F.2d at 1179. And, again,
Plaintiff offers nothing to refute the proposition that the state-law claims she has
asserted against Defendants Wesaw and Vinson in their official capacities are
barred by Eleventh Amendment immunity. Accordingly, these claims are subject
For the reasons set forth above,
NOW, THEREFORE, IT IS HEREBY ORDERED that the motions for
partial dismissal filed by Defendants Lori Vinson (docket #5) and Matthew Wesaw
(docket #10) are GRANTED IN PART, to the extent that these Defendants seek
the dismissal of (i) the federal ADA claims for money damages asserted against
them in their official capacities, (ii) the federal ADA claims asserted against them
in their individual capacities, and (iii) the state-law ELCRA claims asserted against
While Defendants Wesaw and Vinson concede that they are subject to liability
under the state-law ELCRA claims asserted against them in their individual capacities,
they nonetheless suggest that the Court should decline to exercise supplemental
jurisdiction over these claims. Yet, the statute to which Defendants appeal in support of
this request provides in pertinent part that the Court may decline to exercise supplemental
jurisdiction over a state-law claim if it “has dismissed all claims over which it has
original jurisdiction.” 28 U.S.C. § 1367(c)(3) (emphasis added). As the individual
Defendants themselves concede, Plaintiff’s ADA claims against them in their official
capacities remain pending, at least to the extent that Plaintiff seeks injunctive and not
monetary relief. It follows that the condition set forth in § 1367(c)(3) is not satisfied, and
the Court therefore denies the individual Defendants’ request that the ELCRA claims
brought against them in their individual capacities be dismissed without prejudice.
them in their official capacities. IT IS FURTHER ORDERED that the motion to
dismiss filed by the Defendant Michigan Department of Civil Rights (docket #17)
is GRANTED in its entirety.
s/Gerald E. Rosen
United States District Judge
Dated: March 21, 2016
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on March 21, 2016, by electronic and/or ordinary mail.
Case Manager, (313) 234-5135
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