United States District Court, D. Nebraska
MEMORANDUM AND ORDER
LAURIE SMITH CAMP, Chief District Judge.
This matter is before the Court on the Motion to Dismiss (Filing No. 6) submitted by Defendants State of Nebraska ("Nebraska") and the Department of Correctional Services of Nebraska ("NDCS") (collectively "Defendants"). For the reasons stated below, Defendants' Motion will be granted.
Plaintiff Shayna Leighton ("Leighton") filed a Complaint pursuant to the Americans with Disabilities Act of 1990, ("ADA"), 42 U.S.C. §§ 12101-12213 (2012), and § 504 of the Rehabilitation Act of 1973, 29 U.S.C §§ 701-796 (2012).
In her Complaint (Filing No. 1-1), Leighton alleges that she was employed by NDCS from March 18, 2013, to September 1, 2013. She contends that she had a disability, but was qualified to continue her employment. She asserts that, because of her disability, she was harassed and subjected to discrimination, and her employment was terminated. She also claims that Defendants retaliated against her after she complained about her hostile work environment. Leighton seeks damages for her injuries, including, lost wages, lost benefits, emotional distress, and continued suffering.
STANDARD OF REVIEW
A motion under Federal Rule of Civil Procedure 12(b)(1) challenges whether the Court has subject matter jurisdiction to hear the case. The party attempting to invoke a federal court's jurisdiction bears the burden of establishing that jurisdiction exists. Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 933-34 (8th Cir. 2012) (quoting Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 102-04 (1998)); Great Rivers Habitat Alliance v. FEMA, 615 F.3d 985, 988 (8th Cir. 2010). The Court has "wide discretion" to decide the process with which its jurisdiction can best be determined. Johnson v. United States, 534 F.3d 958, 964 (8th Cir. 2008) (quoting Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995)) (internal quotation marks omitted). It "has the authority to dismiss an action for lack of subject matter jurisdiction on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.'" Id. at 962 (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)); see also Jessie v. Potter, 516 F.3d 709, 712 (8th Cir. 2008) (stating that "[m]otions to dismiss for lack of subject-matter jurisdiction can be decided in three ways: at the pleading stage, like a Rule 12(b)(6) motion; on undisputed facts, like a summary judgment motion; and on disputed facts").
Generally, the Eleventh Amendment bars suits in federal court by private individuals against nonconsenting States. Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001). This bar applies to both states and state agencies. Doe v. Nebraska, 345 F.3d 593, 597 (8th Cir. 2003). Actions by private individuals against States in federal court are not barred by sovereign immunity when either (i) Congress validly abrogates States' immunity, see Garrett, 531 U.S. at 363, or (ii) States waive sovereign immunity. See Doe, 345 F.3d at 597. The Supreme Court recognized that "Congress may abrogate the States' Eleventh Amendment immunity when it both unequivocally intends to do so and act[s] pursuant to a valid grant of constitutional authority.'" Garrett, 531 U.S. at 363 (alternations in original) (quoting Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73 (2000)). "To waive sovereign immunity, a state must make a clear, unequivocal statement that it wishes to do so." Faibisch v. Univ. of Minn., 304 F.3d 797, 800 (8th Cir. 2002). "A state may waive its immunity either by explicitly specifying its intention to subject itself to suit or by voluntarily participating in federal spending programs where Congress expressed a clear intent to condition receipt of federal funds on a state's consent to waive its sovereign immunity." Doe, 345 F.3d at 597.
Leighton's Claim Under the ADA
Leighton references the ADA in her Complaint,  but she does not expressly state that she intends to bring a claim under the ADA. Title I of the ADA prohibits employers from "discriminat[ing] against a qualified individual on the basis of 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). If Leighton did intend to assert a claim under Title I of the ADA, it is barred by the Eleventh Amendment.
Leighton does not argue that Defendants waived sovereign immunity nor does she allege any facts in the Complaint allowing this Court to infer a waiver of sovereign immunity with respect to her ADA, if any. With regard to abrogation of immunity, there is no question that Congress expressed a clear intent to abrogate States' immunity under the ADA. See 42 U.S.C. § 12202 ("A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter."). However, in Garrett, the Supreme Court held that Congress's abrogation of immunity for suits brought by state employees under Title I of the ADA was barred by the Eleventh Amendment because Congress's attempt to abrogate State's immunity was not pursuant to a valid grant of constitutional authority. 531 U.S. at 360; see also Faibisch, 304 F.3d at 800. "[P]rivate individuals can sue state officials for injunctive relief under the ADA by using Ex parte Young." Gibson v. Arkansas Dep't of Correction, 265 F.3d 718, 722 (8th Cir. 2001). However, the Ex Parte Young doctrine "does not extend to states or state agencies." Monroe v. Arkansas State Univ., 495 F.3d 591, 594 (8th Cir. 2007). NDCS is an agency of the State of Nebraska. See Perryman v. Nebraska Dep't of Corr. Servs., 568 N.W.2d Disabilities Act (ADA).... That same day, [Leighton] sent an email to the ADA coordinator advising her about the conversation between [Leighton] and [Warden Michael Kenney].") 241, 245 (Neb. 1997) (citing Neb. Rev. Stat. § 83-171 (Nebraska statute creating NDCS)).
Here, Leighton is suing the State of Nebraska and its agency, NDCS, for damages based on alleged discrimination arising out of her employment with NDCS. Under Garrett, Leighton's claims under Title I of the ADA against Nebraska and NDCS are barred by the doctrine of ...