Drew v. Virginia Commonwealth University, Parking and Transportation

Filing 11

OPINION. See Opinion for details. Signed by District Judge John A. Gibney, Jr. on 3/27/2018. Opinion was mailed to Plaintiff. (sbea, )

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

MONIQUE R. SMALL DREW,
Plaintiff,
Civil Action No. 3:17-cv-429-JAG

V.

VIRGINIA COMMONWEALTH UNIVERSITY,
PARKING AND TRANSPORTATION,
Defendant.
OPINION

Monique R. Small Drew worked as a part-time parking enforcement officer for Virginia

Commonwealth University Parking and Transportation ("VCU").' Drew sustained an injury
while on the job. She filed paperwork with VCU's Human Resource Department requesting
Americans with Disabilities Act ("ADA") accommodations, and claims VCU did not make those
accommodations. In December 2015, VCU fired Drew. Drew alleges VCU fired her either

because of her disability or in retaliation for requesting accommodations.

Drew, proceeding pro se, sued VCU in the Circuit Court for the City of Richmond and

requested $250,000 in damages for alleged ADA violations. VCU removed the case to this
Court and moved to dismiss for lack of subject matter jurisdiction due to sovereign immunity

protection. This Court granted the motion to dismiss, but gave Drew leave to amend her

complaint. After Drew filed her amended complaint, VCU again moved to dismiss for lack of

' The defendant points out that the actual entity is "The Board of Visitors of Virginia
Commonwealth University," which conducts business as Virginia Commonwealth University.
See Va. Code Ann. § 23.1-2300.

subject matter jurisdiction.^ VCU again claims sovereign immunity bars Drew's claims. This
Court agrees and accordingly grants the motion to dismiss with prejudice.
I. STANDARD OF REVIEW

The Federal Rules of Civil Procedure require a plaintiffs complaint to contain "a short

and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P.

8(a)(2). In cases where the plaintiff appears pro se, courts do not expect the pro se plaintiff to
frame legal issues with the clarity and precision expected from lawyers. Accordingly, courts

construe pro se complaints liberally.

Beaudett v. City of Hampton, IIS F.2d 1274, 1278

(4th Cir. 1985). This principle of liberal construction, however, has its limits. Id. Courts do not
need to discern the unexpressed intent of the plaintiff or to conjure up issues on the plaintiffs
behalf Id

VCU has moved to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure,

challenging the Court's subject matter jurisdiction. A motion to dismiss under Rule 12(b)(1)

places the burden on the plaintiff to prove the court has subject matter jurisdiction. Adams v.
Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). A Rule 12(b)(1) motion may challenge subject

matterjurisdiction facially, where the defendant contends that a complaint simply fails to allege

facts upon which to base subject matter jurisdiction. Id. The Court accordingly affords the
plaintiff the same procedural protections afforded under Rule 12(b)(6) consideration, and
presumes the truth of the facts asserted in the complaint. Id.
II. DISCUSSION

Sovereign immunity is a jurisdictional issue. See Research Triangle Inst. v. Bd. of
Governors of the Fed. Reserve Sys., 132 F.3d 985, 987, 990 (4th Cir. 1997). State sovereign

^ Drew largely complied with the Court's Order in amending her complaint. The amended
complaint, however, still cannot survive the sovereign immunity bar.

immunity protects the state from actions at law for damages and from suits in equity to restrain

or compel governmental action. Alliance to Save the Mattaponi v. Commonwealth Dep't of
Envtl. Quality, 270 Va. 423, 455, 621 S.E.2d 78, 96 (2005). This immunity extends to state

agents and state instrumentalities, in addition to the states themselves. Rector and Visitors ofthe
Univ. ofVa. v. Carter, 267 Va. 242, 245, 591 S.E.2d 76, 78 (2004). VCU qualifies as a state

agency and enjoys the privileges of immunity.^ The Eleventh Amendment exemplifies, though
does not limit, the broader concept of state sovereign immunity, and the Court thus discusses

both with regard to Drew's claims. See Stewart v. North Carolina, 393 F.3d 484, 488 (4th Cir.
2005).

A claim against a state or state agency in federal court may overcome the Eleventh
Amendment immunity bar in one of three ways: (1) Congress abrogating state immunity (in
other words. Congress passing a new law explicitly removing state sovereign immunity for a
particular issue); (2) a plaintiff seeking prospective or injunctive relief against a state agent; or

(3) a state expressly consenting to suit or waiving its immunity. See Bd. of Trustees of Univ. of
Ala. V. Garrett, 531 U.S. 356, 363 (2001); Edelman v. Jordan, 415 U.S. 651, 673 (1974); Ex
parte Young, 209 U.S. 123, 159-60 (1908).

The first two immunity exceptions do not apply here. In Garrett, the Supreme Court

conclusively held that Congress did not abrogate states' Eleventh Amendment immunitythrough
Title I of the ADA. Garrett, 531 U.S. at 374. Further, Drew seeks monetary, not prospective
injunctive relief

^ See Carter, 267 Va. at 244, 591 S.E.2d at 78 (finding University of Virginia a state agency
under protection of sovereign immunity); see also Va. Code Ann. § 23.1-2300 et seq. (creating
VCU through Virginia statute).

The next question is whether VCU waived its Eleventh Amendment immunity from suit

in federal court. By removing a case from state to federal court, a state defendant waives its right

to rely on Eleventh Amendment immunity. Sansotta v. Town ofNags Head, 724 F.3d 533, 546
(4th Cir. 2013) (stating the Supreme Court "created a bright line rule: any voluntary removal

waives immunity") (citingLapides v. Bd. ofRegents ofthe Univ. Sys. ofGa., 535 U.S. 613, 621
(2002)). Here, Drew originally filed this action in state court, and VCU subsequently removed it
to federal court. VCU's voluntary removal to federal court thus waived the state's Eleventh
Amendment immunity.

Removal to federal court, however, did not waive VCU's broader state sovereign

immunity. See Stewart, 393 F.3d at 488 (noting that Eleventh Amendment immunity is only "an

example of state sovereign immunity as it applies to suits in federal court against unconsenting
states"); see also Beaulieu v. Vermont, 807 F.3d 478, 490 (2d Cir. 2015) (holding that "while a
state defendant's removal waives the state's Eleventh Amendment immunity, it does not waive

the state's general sovereign immunity"). Virginia waives its state sovereign immunity only
when a statute "has explicitly and expressly announced such a waiver." Ligon v. Cty. of
Goochland, 279 Va. 312, 317, 689 S.E.2d 666, 669 (2010). The Court cannot find, nor did Drew

point to, any statutory or constitutional evidence showing that Virginia has waived its sovereign
immunity as to Title I ADA claims. See Crawford v. Dep't of Corr. Educ., No. 3:11CV430HEH, 2011 WL 5975254, *1, *5 (E.D. Va. Nov. 29, 2011), affd. All F. App'x 192 (4th Cir.

2012) (finding Virginia did not waive immunity from Title I ADA claims); cf Blackburn v.
Trustees of Guilfod Technical Community College, 822 F. Supp. 2d 539, 543 (M.D.N.C. Sept.

30, 2011) (finding that a North Carolina statute explicitly waived its state sovereign immunity
for ADA claims).

Thus, while VCU's removal of this case to federal court barred it from asserting Eleventh

Amendment immunity, VCU retained its broader state sovereign immunity that protects state

agencies from private actions under the ADA in both state and federal courts. ^
III. CONCLUSION

VCU, as a state agency, enjoys the protection of the state's sovereign immunity. Virginia
has not waived its broad, state sovereign immunity as it relates to Drew's ADA claim. The

Court thus does not have subject matter jurisdiction over Drew's case. Accordingly, the Court
grants VCU's motion to dismiss with prejudice.
The Court will enter an appropriate order.

Let the Clerk send a copy of this Opinion to all counsel of record and to the pro se
plaintiff.

Date: March.
Richmond, VA

_, 2018

John A. Gibney,
United States Distri(

In her opposition brief. Drew alleges a violation of Section 504 of the Rehabilitation Act, a
claim not mentioned in her amended complaint. (0pp. Br. at 2). A one-year time bar, however,
prohibits Drew from bringing a claim under the Rehabilitation Act. See Wolsky v. Med. Coll of
Hampton Rds., 1 F.3d 222, 224 (4th Cir. 1993). VCU terminated Drew in December 2015, and
she did not file her complaint until May 2017.