Goodnow v. Oklahoma Department of Human Services

Filing 28

OPINION AND ORDER by Judge Gregory K Frizzell ; setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 10/21/2011); granting 11 Motion to Dismiss; granting 20 Motion to Dismiss (hbo, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA

HIU-YEE GOODNOW,

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Plaintiff,
v.
OKLAHOMA DEPARTMENT OF HUMAN
SERVICES, JOHN McCRACKEN,
JOAN GOIN, STEPHANIE STIE,
Defendants.

Case No. 11-CV-54-GKF-FHM

OPINION AND ORDER
Before the court are the Motion to Dismiss of the Oklahoma Department of Human
Services (“DHS”) [Dkt. #11] and the Motion to Dismiss of individual defendants John
McCracken, Joan Goin and Stephanie Stie (the “Individual Defendants”). [Dkt. #20].
Plaintiff Hiu-Yee Goodnow (“Goodnow”), a former employee of DHS, sued defendants
for disability discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. §
12101 et seq., as amended by the ADA Amendments Act of 2008, PL 110-2008 (“ADAAA”)
and 42 U.S.C. § 1983.
She asserts claims against DHS for failure to accommodate in violation of 42 U.S.C. §§
12112(a) and (b)(5) and (2) (First Cause of Action); retaliation in violation of the ADAAA
(Second Cause of Action); and wrongful termination in violation of the ADAAA (Third Cause of
Action). She asserts 42 U.S.C. § 1983 claims against the Individual Defendants for harassment,
retaliation and termination in violation of the ADAAA (Fourth Cause of Action); violation of her

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constitutional right of due process (Fifth Cause of Action); and violation of her right of equal
protection (Sixth Cause of Action).
DHS has moved for dismissal of plaintiff’s First, Second and Third Causes of Action
pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) on the basis that plaintiff’s action against it is
barred by the Eleventh Amendment to the U.S. Constitution.
Individual Defendants have moved for dismissal of the Fourth, Fifth and Sixth Causes of
Action under Rule 12(b)(6) for failure to state a claim upon which relief may be granted.
I. Claims Against DHS
The Eleventh Amendment, as interpreted, bars suits against a state by its own citizens.
Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). Although Congress may abrogate state
sovereign immunity under certain circumstances, the Supreme Court in Board of Trustees of the
University of Alabama v. Garrett, 531 U.S. 356, 360 (2001), held that Title I of the ADA did not
validly abrogate state sovereign immunity, and therefore the Eleventh Amendment bars such
suits against states. The Tenth Circuit, applying Garrett, has ruled, similarly, that suits by
individuals against states for violation of Title I of the ADA are barred by Eleventh Amendment.
Estes v. Wyoming Dept. of Transportation, 302 F.3d 1200, 1203 (10th Cir. 2002). See also
Tarver v. State of Oklahoma, 2010 WL 944205 (N.D. Okla. 2010); Elwell v. State of Oklahoma,
2011 WL 560455 (W.D. Okla. 2011).
Plaintiff asserts Edelmen is not applicable to her claims against DHS because Congress
has since passed the ADAAA on September 25, 2008, with an effective date of January 1, 2009.
The ADAAA changed the definition of terms related to “disability” to reverse statutory
interpretations by the Supreme Court that narrowed coverage.1 However, the ADAAA is devoid

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The ADAAA explicitly cites Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and Toyota Motor Mfg.,
Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) as the cases the amendments are meant to address.

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of language purporting to negate the constitutional limitation upon the authority of Congress to
abrogate state sovereign immunity recognized in Garrett. The court rejects plaintiff’s argument
that the ADAAA renders Garrett moot.
Plaintiff also argues that a work share agreement between the Oklahoma Human Rights
Commission and the EEOC constitutes a waiver of sovereign immunity. Plaintiff cites no
authority for this proposition, and the court has found none.2 To the contrary, “[b]y agreeing
that a state agency…and a federal agency, the EEOC, share jurisdiction to investigate allegations
of employment discrimination, it does not logically, or legally, follow that the State…has
consented to suit in federal court.” Walker v. Texas, Office of the Attorney General, 217
F.Supp.2d 776, 779 (E.D. Tex. 2002).
Plaintiff’s claims against DHS are barred by the Eleventh Amendment’s grant of
sovereign immunity to states.
II. Claims Against Individual Defendants
A. Allegations of the Amended Complaint
Plaintiff alleges she timely filed a written complaint of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) and received notice of her right to sue. [Dkt.
#9, Amended Complaint, ¶2]. She contends that she was a qualified employee with disabilities
during the period of her employment with DHS within the meaning of 42 U.S.C. § 12102(2) in
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In support of her waiver argument, plaintiff cites the dissenting opinion by Justice Marshall in Edelman v. Jordan,
415 U.S. 651, 695-96 (1974). In Edelman, the Supreme Court held the Eleventh Amendment barred a class action
against the Illinois Department of Public Aid. Justice Marshall, in dissenting, distinguished between
“governmental” and “proprietary” functions of state government, asserting that when a state engaged in a
“profitmaking enterprise,” a voluntary waiver of sovereign immunity can more easily be found. There the state had
agreed to comply with conditions imposed by Congress upon the expenditure of federal funds as part of a federalstate cooperative assistance program for the needy. Plaintiff also cites Smith v. Oral Roberts Evangelistic
Association, Inc., 731 F.2d 684 (10th Cir. 1984). In Smith, the court held that in a “deferral state” such as
Oklahoma, when the complainant initially instituted proceedings with the appropriate state or local agency, the
federal filing limitation of 300 days rather than the state-imposed time limitation applied. Id. at 690. The Tenth
Circuit did not, however, hold that a state waives its Eleventh Amendment immunity by choosing to become a
deferral state.

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that: (a) she had a physical and mental impairment that substantially limited at least one major
life activity; and (b) DHS regarded her as having a substantially limiting impairment. [Id., ¶6].
She asserts that she was a qualified individual with a disability within the meaning of 42 U.S.C.
§ 12102(8) in that she was able to perform the essential functions of the position with reasonable
accommodation. [Id., ¶7]. Plaintiff alleges that during her employment she was subjected to
harassment in the nature of a series of adverse employment acts directly specifically at her; she
was placed into unfavorable working conditions and not permitted to properly carry out the
duties of her position; and defendants failed and/or refused to provide a reasonable
accommodation for plaintiff’s disability and perceived disability. [Id., ¶8].
In her Fourth Cause of Action, plaintiff asserts a § 1983 claim, alleging defendants “in
spite of, and motivated by, Plaintiff’s disability, harassed, retaliated against, and terminated her,
after refusing to accommodate her disability,” in violation of the ADAAA. [Id., ¶¶22-23]. She
alleges Individual Defendants “followed a state custom, policy, and practice in so acting” [Id.,
¶24]; and she “suffered embarrassment, humiliation, and other forms of mental and emotional
distress, loss of income and benefits, together with other financial loss, as a consequence of
Individual Defendants’ violation of the ADAAA under color of law.” [Id., ¶25].
In her Fifth Cause of Action, plaintiff asserts a § 1983 claim, alleging the Individual
Defendants denied her procedural and substantive due process rights in discharging her [Id.,
¶¶28-29]. She alleges she “had a protected property interest in maintaining her livelihood” [Id.,
¶30]; and she “suffered embarrassment, humiliation, and other forms of mental and emotional
distress, loss of income and benefits, together with other financial loss, as a consequence of
Individual Defendants’ violation of her due process rights under color of law.” [Id., ¶31].

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In her Sixth Cause of Action, plaintiff asserts a § 1983 claim, alleging the Individual
Defendants denied her right to equal protection “in harassing her, retaliating against her, and
discharging her pursuant to DHS custom, policy, and practice unlike the treatment accorded
similarly situated DHS employees” [Id., ¶34]. She alleges she “suffered embarrassment,
humiliation, and other forms of mental and emotional distress, loss of income and benefits,
together with other financial loss, as a consequence of Individual Defendants’ violation of her
due process rights under color of law.” [Id., ¶35].
B. Legal Standard
Rule 8(a)(2) of the Federal Rules of Civil Procedure provides that a complaint must
contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”
The United States Supreme Court clarified this standard in Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007), ruling that to withstand a motion to dismiss, a complaint must contain
enough allegations of fact “to state a claim to relief that is plausible on its face.” 550 U.S. 544,
570 (2007). “While 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 entitle[ment] to
relief requires more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Id. at 555 (internal quotations omitted). On a motion to dismiss,
courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Id.
Under the Twombly standard, “the complaint must give the court reason to believe that this
plaintiff has a reasonable likelihood of mustering factual support for these claims.” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008), quoting Ridge at Red Hawk, L.L.C. v.
Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original). “The burden is on the
plaintiff to frame a complaint with enough factual matter (taken as true) to suggest that he or she

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is entitled to relief.” Robbins, 519 F.3d at 1247, citing Twombly, 127 S.Ct. at 1965 (internal
quotations omitted). “Factual allegations must be enough to raise a right to relief above the
speculative level.” Id.
Although the new Twombly standard is “less than pellucid,” the Tenth Circuit Court of
Appeals has interpreted it as a middle ground between “heightened fact pleading,” which is
expressly rejected, and complaints that are no more than “labels and conclusions,” which courts
should not allow. Robbins, 519 F.3d at 1247, citing Twombly, 127 S.Ct. at 1964, 1965, 1974.
Accepting the allegations as true, they must establish that the plaintiff plausibly, and not just
speculatively, has a claim for relief. Robbins, 519 F.3d at 1247. “This requirement of
plausibility serves not only to weed out claims that do not (in the absence of additional
allegations) have a reasonable prospect of success, but also to inform the defendants of the actual
grounds of the claim against them.” Id. at 1248. The Tenth Circuit Court of Appeals instructed
in Robbins that “the degree of specificity necessary to establish plausibility and fair notice, and
therefore the need to include sufficient factual allegations, depends on context. . . .[and] the type
of case.” Id. (citing Phillips v. County of Allegheny, 515 F.3d 224, 231-32 (3d Cir. 2008)). A
simple negligence action may require significantly less allegations to state a claim under Rule 8
than a case alleging anti-trust violations (as in Twombly) or constitutional violations (as in
Robbins). Id.
C. Analysis
1. Fourth Cause of Action
Plaintiff’s Fourth Cause of Action is for violation of 42 U.S.C. § 1983 based upon
Individual Defendants’ alleged violation of the ADAAA. The Individual Defendants assert that

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plaintiff cannot bring a § 1983 action to enforce the substantive rights created by Title I of the
ADAAA.
In Stevenson v. ISD No. I-038 of Garvin Co., Oklahoma, 393 F. Supp.2d 1148 (W.D.
Okla.), District Judge Robin Cauthron addressed whether plaintiffs could bring a § 1983 action
to enforce the substantive rights created by Title II of the ADA. The court noted that the Fifth,
Eighth, Ninth and Eleventh Circuits had answered this question in the negative, and the Tenth
Circuit had held rights created by the Rehabilitation Act, 29 U.S.C. § 701 et seq., were not
enforceable through § 1983 against government employees in their official capacity. Id. at 115152. The court agreed with the Fifth, Eighth, Ninth and Eleventh Circuits. Id. at 1152. In so
ruling, the court stated:
Section 1983 itself does not create any substantive rights, but merely provides
relief against those who, acting under color of law, violate federal rights created
elsewhere.” Reynolds v. School Dist. No. 1, 69 F.3d 1523, 1536 (10th Cir. 1995).
The failure to identify the substantive rights allegedly violated is grounds for
dismissal for failure to state a claim. Id.
Section 1983 cannot be used to vindicate a violation of federal law where Congress
has otherwise created an incompatible and comprehensive enforcement scheme.
See Blessing v. Freestone, 520 U.S. 329, 341, 117 S.Ct. 1353, 137 L.Ed.2d 569
(1997). For example, the Tenth Circuit has held that § 1983 may not be used to
remedy violations of the [Individuals With Disabilities Education Act]. Padilla,
233 F.3d at 1273. Similarly, age discrimination claims brought under § 1983
Are preempted by the Age Discrimination in Employment Act (ADEA), 29 U.S.C.
§ 621 et seq. Migneault v. Peck, 158 F.3d 1131, 1140 (10th Cir. 1998), abrogated
on other grounds by Kimel v. Fla. Bd. of Regents, 528 U.S.62, 120 S.Ct. 631, 145
L.Ed.2d 522 (2000). Section 1983 is also not available to remedy Title VII
violations unless there is also an independent basis for that claim, such as an
equal protection violation. Notari v. Denver Water Dep’t, 971 F.2d 585, 587 (10th
Cir. 1992); Polson v. Davis, 895 F.2d 705, 710 (10th Cir. 1990). “[T]he basis for
a § 1983 claim is ‘independent’ from Title VII when it rests on substantive
rights outside Title VII—that is, when it rests on a constitutional right or a federal
statutory right other than those created by Title VII.” Notari, 971 F.2d at 587.
Otherwise, the “precisely drawn, detailed enforcement structure of the later
statute must be deemed to preempt the earlier general remedial statute.” Polson,
895 F.2d at 710.

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Id.
The court agrees with Judge Cauthron. Plaintiff’s fourth cause of action must be
dismissed, as it attempts, impermissibly, to premise § 1983 liability against the Individual
Defendants on alleged violation of the ADAAA.
2. Fifth Cause of Action
In her Fifth Cause of Action, plaintiff claims the Individual Defendants violated her
constitutional right of due process by discharging her. She contends she has a protected property
interest in “maintaining her livelihood.”
In order to state a claim for deprivation of procedural due process under the Fourteenth
Amendment, plaintiff must allege (1) that she possessed a protected interest such that the due
process protections were applicable; and (2) that she was not afforded an appropriate level of
process. See Camuglia v. City of Albuquerque, 448 F.3d 1214, 1219 (10th Cir. 2006).
The Supreme Court has recognized that a public employee may have a constitutionally
cognizable property interest in continued employment pursuant to state law or if “there is a
clearly implied promise of continued employment.” Bd. Of Regents of State Colleges v. Roth,
408 U.S.564, 577 (1972). The court in Roth stated:
“To have a property interest in a benefit, a person clearly must have more
than an abstract need or desire for it. He must have more than a unilateral
expectation of it. He must, instead, have a legitimate claim of entitlement
to it.
* * *
Property interests, of course, are not created by the Constitution. Rather
they are created and their dimensions are defined by existing rules or
understanding that stem from an independent source such as state law—rules
or understandings that secure certain benefits and that support claims of
entitlement to those benefits.
Id.

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The Oklahoma Personnel Act gives a “permanent classified employee” the right to a
pretermination hearing and the right to appeal her discharge. 74 O.S. § 840-6.4, 6.5. New hires,
however, are appointed for a probationary period of one year and are not entitled to such
protections. 74 O.S. § 840.4.13(D).
Here, although plaintiff alleges she had a “protected property interest in maintaining her
livelihood,” the Amended Complaint is devoid of any factual allegations supporting this
conclusory statement. Plaintiff does not allege she was a permanent classified employee eligible
for the protections afforded by the Oklahoma Personnel Act, nor does she allege any other facts
supporting a legally cognizable property interest.3
The court is not bound to accept as true a legal conclusion couched as a factual
allegation. Twombly, 550 U.S. at 555. Plaintiff has failed to state a claim for relief under Rule
8(a)(2) and thus is subject to dismissal under Rule 12(b)(6).
3. Sixth Cause of Action
Plaintiff’s Sixth Cause of Action is for denial of her right of equal protection under the
Fourteenth Amendment. Specifically, plaintiff alleges Individual Defendants, under color of
law, “denied Plaintiff her right to equal protection in harassing her, retaliating against her, and
discharging her pursuant to DHS custom, policy, and practice unlike the treatment accorded
similarly situated DHS employees.” [Dkt. #9 at ¶34] (emphasis added). This allegation
comprises a “class of one” claim.4

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The Individual Defendants assert, without providing evidence, that plaintiff was a probationary employee.
Equal protection claims typically concern governmental classifications that “affect some groups of citizens
differently than others.” McGowan v. Maryland, 366 U.S. 420, 425 (1961). However, in Village of Willowbrook v.
Olech, 528 U.S. 562, 564-65 (2000), the Supreme Court recognized than an equal protection claim can in some
circumstances be sustained where a plaintiff has not alleged class-based discrimination, but instead claims that she
has been irrationally singled out as a so-called “class of one.”

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In Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591 (2008), the Supreme Court
rejected the applicability of the class-of-one theory of equal protection to public employment
decisions. In so ruling, the court recognized the distinction “between government exercising the
power to regulate, or license as lawmaker, and the government acting as proprietor, to manage
[its] internal operation.” Id. at 598 (internal quotation and citation omitted). As a result, “the
government as employer indeed has far broader powers than does the government as sovereign.”
Id. The court stated:
Given the common-sense realization that government offices could not function
if every employment decision became a constitutional matter, constitutional
review of government employment decisions must rest on different principles
than review of … restraints imposed by the government as sovereign.
In light of these basic principles, we have often recognized that
government has significantly greater leeway in its dealings with citizen
employees than it does when it brings its sovereign power to bear on citizens
at large.
Id. at 599 (internal quotations and citations omitted). The court concluded:
State employers cannot, of course, take personnel actions that would independently
violate the Constitution. But recognition of a class-of-one theory of equal protection in
the public employment context—that is, a claim that the State treated an employee
differently from others for a bad reason, or no reason at all—is simply contrary to the
concept of at-will employment. The Constitution does not require repudiating that
familiar doctrine.
To be sure, Congress and all the States have, for the most part, replaced at-will
employment with various statutory schemes protecting public employees from
discharge for impermissible reasons. But a government’s decision to limit the
ability of public employers to fire at will is an act of legislative grace, not
constitutional mandate.
Id. at 606-07. (citations omitted).
Plaintiff’s Sixth Cause of Action is not cognizable under Engquist.

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III. Conclusion
For the foregoing reasons, defendant DHS’s Motion to Dismiss [Dkt. #11] and the
Individual Defendants’ Motion to Dismiss [Dkt. #20] are granted. In his responses to both
motions, plaintiff requested that he be given an opportunity to amend his complaint. Plaintiff is
given leave to file a motion to amend his complaint on or before October 21, 2011, with a copy
of the proposed amended complaint attached thereto.
ENTERED this 12th day of October, 2011.

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