Lacy v. Ohio Department of Job and Family Services

Filing 15

ORDER conditionally granting 9 Defendant's Motion for Judgment on the Pleadings. Signed by Magistrate Judge Terence P. Kemp on 4/19/17. (sem)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Carma M. Lacy,

:

Plaintiff,

:

v.

:
:

Ohio Department of Job and
Family Services,
Defendant.

Case No. 2:16-cv-912
Magistrate Judge Kemp

:
:

OPINION AND ORDER
This case was brought by plaintiff Carma Lacy against the
Ohio Department of Job and Family Services (“ODJFS”) alleging
violations of the Americans With Disabilities Act (“ADA”) and
violations of §4112.02 of the Ohio Revised Code. This matter is
now before the Court on the Defendant’s motion for judgment on
the pleadings pursuant to Fed.R.Civ.P. 12(c). (Doc. 9). For the
following reasons, the motion will be conditionally granted.
I.

Background

The allegations in the complaint can be summarized as
follows.

Ms. Lacy suffers from vision impairment. She wears a

prosthetic eye and has 20/200 vision in the other eye.

Ms. Lacy

accepted a job with ODJFS in 2009 and eventually held the
position of Management Analyst Supervisor. In November of 2011,
Ms. Lacy requested an anti-glare monitor screen protector from
her supervisor. She filled out the ADA forms for a reasonable
accommodation request as instructed, but was never provided with
the anti-glare protector. As a result, Ms. Lacy experienced pain,
including headaches due to eye strain. In August of 2013, Ms.
Lacy applied for a promotion within the ODJFS as a manager in the
Grants Management Unit. Although she was qualified for the
promotion, the position was offered to a less qualified applicant

without a disability. Ms. Lacy also claims that she was subject
to harassment due to her disability, and that certain employees
of the ODJFS addressed her with profane and condescending
language.

She asserts that she was mocked about her disability

and, despite her complaints, the ODJFS failed to remedy the
hostile work environment.

Ms. Lacy states that she suffered pain

and emotional distress as a result of the Defendant’s actions and
was eventually forced to resign.
Ms. Lacy filed two charges of discrimination in employment
against ODJFS with the Ohio Civil Rights Commission (“EEOC”).
The first charge, filed on December 19, 2013, alleged
discrimination based on race, disability, national
origin/ancestry, and retaliation. (Doc. 1, Ex. A).

The EEOC

closed the 2013 charge on June 22, 2016, and that charge forms
the basis of this case.

Ms. Lacy’s second charge of

discrimination was filed on April 14, 2014, alleging similar
claims. (Doc. 1, Ex. B). That charge was closed on September 8,
2014. Ms. Lacy filed this lawsuit on September 22, 2016, claiming
that ODJFS violated the ADA and Ohio law by failing to provide a
reasonable accommodation for her disability, failing to promote
her in favor of a less qualified candidate, and subjecting her to
a hostile work environment. She seeks reinstatement to her former
position with ODJFS at the rate of pay and benefits as if she had
remained consistently employed, as well as reasonable costs and
attorneys’ fees.
II.

Legal Standard

A motion for judgment on the pleadings filed under
Fed.R.Civ.P. 12(c) attacks the sufficiency of the pleadings and
is evaluated under the same standard as a motion to dismiss.
Amersbach v. City of Cleveland, 598 F.2d 1033, 1038 (6th Cir.
1979).

In ruling upon such motion, the Court must accept as true

all well- pleaded material allegations of the pleadings of the
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opposing party, and the motion may be granted only if the moving
party is nevertheless clearly entitled to judgment.

Southern

Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 479
F.2d 478, 480 (6th Cir. 1973).

The same rules which apply to

judging the sufficiency of the pleadings apply to a Rule 12(c)
motion as to a motion filed under Rule 12(b)(6); that is, the
Court must separate factual allegations from legal conclusions,
and may consider as true only those factual allegations which
meet a threshold test for plausibility.

See,e.g., Tucker v.

Middleburg-Legacy Place, 539 F.3d 545 (6th Cir. 2008), citing,
inter alia, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
It is with these standards in mind that the motion for judgment
on the pleadings must be decided.
III.

Discussion

ODJFS argues that Ms. Lacy’s claims should be dismissed
because they are barred by sovereign immunity or, alternatively,
because she failed to exhaust her administrative remedies.
A. Sovereign Immunity- ADA claims
ODJFS first argues that this Court lacks jurisdiction over
Ms. Lacy’s claims because it is entitled to sovereign immunity.
Ms. Lacy’s federal claims arise out of her employment with OSJFS,
and falls under Title I of the ADA.

Title I provides that no

applicable employer “shall discriminate against a qualified
individual on the basis of a disability in regard to job
application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms,
conditions, and privileges of employment.” 42 U.S.C. §12112(a).
For the purposes of this analysis, the Court will presume that
Ms. Lacy is a qualified individual with a disability as defined
in the ADA.
The Eleventh Amendment bars a suit brought in federal court
against a state and its agencies unless the state has waived its
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sovereign immunity or otherwise consented to be sued.

Pennhurst

State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 (1984).
Nonetheless, in some circumstances Congress may abrogate
sovereign immunity by enacting appropriate legislation.

Seminole

Tribe of Fla. v. Florida, 517 U.S. 44, 59 (1996). The Supreme
Court has held that the rights and remedies available pursuant to
the ADA were primarily created with private employers in mind,
and permitting suits against state employers was not a valid
abrogation by Congress of sovereign immunity. Board of Trustees
of Univ. of Alabama v. Garrett, 531 U.S. 356 (2001). Ohio has not
waived its sovereign immunity with respect to claims for money
damages under Title I of the ADA. See Johns v. Supreme Ct. of
Ohio, 753 F.2d 524, 527(6th Cir. 1985).

Thus, any claims for

money damages against ODJFS for violations of the ADA are barred
by sovereign immunity.
In this case, however, Ms. Lacy does not seek money damages,
but prospective injunctive relief in the form of reinstatement to
her position with ODJFS. In Garrett, the Supreme Court explained:
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 no 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 redress.
Garrett, 531 U.S. at 374, n. 9 (internal citations omitted).

Ms.

Lacy relies on Garrett in support of her argument that Eleventh
Amendment immunity does not prevent her from pursuing her ADA
claims against ODJFS, because she seeks prospective injunctive
relief under Ex Parte Young (i.e. reinstatement of employment)
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rather than an award of money damages as redress for the alleged
ADA violations. Indeed, the Sixth Circuit Court of Appeals has
recognized that prospective injunctive relief may be pursued
under the ADA against state employees in their official
capacities.

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 v. Arenac County, 574 F.3d
334, 344 (6th Cir. 2009) (noting that the Supreme Court
recognizes an exception to this rule of Eleventh Amendment
immunity for ADA claims against a state if the suit seeks only
prospective injunctive or declaratory relief); Ernst v. Rising,
427 F.3d 351, 358 6th Cir. 2005) (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”).
Whether a plaintiff has filed a valid ADA complaint that
under Ex parte Young is to be considered on a “claim-by-claim
basis.” Ernst v. Rising, 427 F.3d 351, 368 (6th Cir. 2005) (en
banc). However, “[a]n Ex parte Young action may be commenced only
against a state official acting in her official capacity...” and
not directly against the state or a state agency.

Whitfield, 639

F.3d at 257 (emphasis added); see also Emery v. Michigan Dept. of
Civil Rights, 2016 WL 1090429 (E.D. Mich. March 21, 2016)
(plaintiff’s Title I ADA claims against state agency were barred
by Eleventh Amendment immunity); Quinn v. Ohio State Highway
Patrol, 2007 WL 3308104 (S.D. Ohio Nov. 6, 2007) (granting motion
for judgment on the pleadings as to ADA claims for prospective
injunctive relief against state agency as barred by Eleventh
Amendment immunity but denying the motion as to same claims
against state employees in their official capacities).
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The sole named defendant in Ms. Lacy’s complaint is ODJFS.
Thus, without naming at least one state official in his or her
official capacity as a defendant, the complaint fails to state a
Title I claim over which the Court has jurisdiction.

Because

this is a curable defect, Ms. Lacy will be granted leave to file
an amended complaint within fourteen (14) days of this Order. Cf.
Brown v. Matauscak, 415 Fed.Appx. 608 (6th Cir. Jan. 31, 2011).
If she fails to do so, the case will be dismissed.
B. Sovereign Immunity- State Law Claims
ODJFS also argues that Ms. Lacy’s state law disability
discrimination claim pursuant to O.R.C. §4112 is barred by
sovereign immunity. Ms. Lacy does not address this argument in
her memorandum in opposition. This Court agrees with ODJFS that
the state law claims are barred by sovereign immunity.

As the

Sixth Circuit has observed:
The Supreme Court has squarely held that pendent state
law claims against state officials in their official
capacity are barred by the Eleventh Amendment.... The
federal courts are simply not open to such state law
challenges to official state action, absent explicit
state waiver of the federal court immunity found in the
Eleventh Amendment.
Experimental Holdings, Inc. v. Farris, 503 F.3d 514, 520–21 (6th
Cir. 2007) (citing Pennhurst State Sch. v. Halderman, 465 U.S.
89, 117–21 (1984)). “Congress has not abrogated the Eleventh
Amendment for state law claims, see Raygor v. Regents of Univ. of
Minn., 534 U.S. 533, 542 (2002), nor has Ohio waived sovereign
immunity.” McCormick v. Miami University, 693 F.3d 654, 664 (6th
Cir. 2012). Consequently, the Court will grant ODJFS’s motion
with respect to Ms. Lacy’s state law claims.
C.

Exhaustion of Administrative Remedies

For completeness, the Court will address ODJFS’s argument
that Ms. Lacy’s failure to accommodate claim is untimely, and
that she failed to exhaust her administrative remedies as to her
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failure to promote claim.

Ms. Lacy filed two charges of

discrimination against ODJFS within about a four-month time
period.

The first charge was filed on December 12, 2013.

On

that form, under the section labeled “Type of Discrimination,”
Ms. Lacy checked “discipline”, “reasonable accommodation,”
“forced to resign,” and “other.” The charge also included a
narrative setting out many of the facts alleged in the complaint,
but did not specifically raise the issue of the request for the
anti-glare screen protector.

The second charge was filed on

April 14, 2014, alleging discrimination on the basis of race and
disability, and did include details about Ms. Lacy’s request for
the anti-glare screen protector.

The EEOC issued dismissal and

notice of rights letters on June 22, 2016 for her 2013 charge and
on September 8, 2014 for the 2014 charge.

ODJFS argues that Ms.

Lacy’s complaint was untimely because it should have been filed
within 90 days of the dismissal of the 2014 charge. Ms. Lacy
argues that she included a claim of failure to accommodate in her
charge that was dismissed in June of 2016 by checking that box on
the EEOC form. She also asserts that she alleged facts in that
charge that would have prompted the EEOC to inquire into a
failure to promote her (i.e. she was accused of errors that she
did not commit). Therefore, Ms. Lacy states that her
administrative remedies were exhausted and her lawsuit is timely
because it was filed within 90 days of the June 2016 dismissal.
Before filing suit in federal court under the ADA, a
plaintiff must exhaust available administrative remedies.

Parry

v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 309 (6th Cir.
2000).

This means a plaintiff must file the appropriate

discrimination charges with the EEOC.

The purpose of this

requirement is “to trigger an investigation, which gives notice
to the alleged wrongdoer of its potential liability and enable...
the EEOC to initiate conciliation procedures in an attempt to
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avoid litigation.” Dixon v. Ashcroft, 392 F.3d 212, 217 (6th Cir.
2004). The failure to timely exhaust administrative remedies is
an appropriate basis for dismissal. Irwin v. Dept. of Veterans
Affairs, 498 U.S. 89, 96 (1990). In Weigel v. Baptist Hosp. of
East Tennessee, 302 F.3d 367 (6th Cir. 2002), the Sixth Circuit
Court of Appeals noted that the general rule in this circuit is
that the judicial complaint should be limited to “the scope of
the EEOC investigation reasonably expected to grow out of the
charge of discrimination.” Id. at 380 (internal citation
omitted).

The Weigel court further explained that, “[p]ursuant

to this rule, we have recognized that ‘where facts related with
respect to the charged claim would prompt the EEOC to investigate
a different, uncharged claim, the plaintiff is not precluded from
bringing suit on that claim.’” Id. (quoting Davis v. Sodexho,
Cumberland College Cafeteria, 157 F.3d 460, 463 (6th Cir. 1998).
This is known as the “expected scope of investigation test.”
Weigel, 302 F.3d at 380. See also Dixon v. Ashcroft, 392 F.3d
212, 217 (holding that plaintiff exhausted his administrative
remedies even though he failed to check the proper box on the
EEOC form). For the purposes of determining exhaustion, the scope
of charges filed by aggrieved employees is to be “construed
liberally.” Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 362
(6th Cir. 2010).
In this case, the question is whether Ms. Lacy alleged
sufficient facts in her 2013 charge to have put ODJFS on notice
of its potential liability and enabled the EEOC to “initiate
conciliation procedures in an attempt to avoid litigation.”
Dixon, supra. In the 2013 EEOC charge, Ms. Lacy stated that she
is “being forced to work in a hostile work environment” and being
harassed due to her “race, color, national origin, ancestry and
disability” and generally held to a different standard than other
employees on the basis of those identifying factors. She provides
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several examples to support her charge, such as being cursed at
by her supervisor and told that she asked too many questions;
being falsely accused of errors that she did not make; being
laughed at when she complained about her situation; and being
told that her supervisor was “far too important” to be
disciplined for her treatment of Ms. Lacy.

She also checked the

boxes on the EEOC form indicating that the “type of
discrimination” was that she was subject to discipline, forced to
resign, not provided with reasonable accommodation, and “other.”
During the scope of the EEOC investigation of the 2013
charge, which was ongoing until 2016, it is reasonable to
conclude that the EEOC would have investigated Ms. Lacy’s claims
beyond the specific examples provided in her 2013 charge.

As the

Court of Appeals has held, the key purpose for the exhaustion
requirement is to put the alleged wrongdoer on notice of the
accusations. Dixon, supra, 392 F.3d at 217. Thus, ODJFS should
have been put on notice of the allegations against it giving rise
to this lawsuit in the course of the investigation.

The charge

indicated that Ms. Lacy alleged a failure to accommodate and that
she was blamed for errors that she had not committed. Moreover,
under the “expected scope of investigation” test, “a plaintiff
may fully exhaust her administrative remedies on a claim even if
the claim was not actually investigated by the EEOC, or
specifically stated in the charge.” Scott v. Eastman Chemical
Co., 275 Fed.Appx. 466, 471 (6th Cir. 2008), citing Dixon, 392
F.3d at 217. Furthermore, “[p]laintiffs are not to be penalized
if the EEOC investigation should have been larger in scope.” Id.
Following the guidance provided by the Sixth Circuit Court of
Appeals, and the information provided in her 2013 EEOC charge,
the Court concludes that Ms. Lacy’s claims in this lawsuit were
reasonably within the expected scope of that investigation and
she has exhausted her administrative remedies.
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III.

Conclusion

For the foregoing reasons, ODJFS’s motion for judgment on
the pleadings is granted as to Ms. Lacy’s state law claims, and
conditionally granted as to the ADA claims. She is granted leave
to file an amended complaint within fourteen (14) days of this
Order.

If she does not, the Court will enter judgment in favor

of ODJFS, dismissing all claims for lack of jurisdiction.

/s/ Terence P. Kemp
United States Magistrate Judge

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