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Simpson v. State

United States District Court, D. Nebraska

December 18, 2018

GEORGE HARRISON SIMPSON, Plaintiff,
v.
STATE OF NEBRASKA and DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         Plaintiff, George Harrison Simpson, filed this case on December 11, 2018, and has been granted leave to proceed in forma pauperis. The court now conducts an initial review of Plaintiffs' Complaint (Filing 1) to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).

         I. SUMMARY OF COMPLAINT

         Plaintiff alleges that while he was a temporary employee at the Nebraska Department of Health and Human Services, six co-workers “made false claims about [his] job performance and used [his] disability against [him] by putting pressure on [him] to do the phone calls of clients they rejected” (Filing 1, p. 4); that his co-workers “refused to talk or communicate with [him] and because of this said [he] couldn't get along with them” (Filing 1, p. 4); and that “[a]fter working 9 months taking phone calls Bob Kane at [a] meeting at [the] person[nel] office stated he was letting [Plaintiff] go and [he] would not work for [the] State any more because [he] was hired without phone experience” (Filing 1, p. 5). Plaintiff alleges “[t]his was just an excuse to get back at me because [he] complained to the person[nel] office about the problems [he] had” (Filing 1, p. 5). Plaintiff claims he “[w]as let go 4 months before [his] term ended” and “would have been hired for another year” (Filing 1, p. 4). Plaintiff also claims that as a State employee he “could have been hired” for a fulltime permanent position if one was advertised internally (Filing 1, p. 4).

         II. STANDARDS ON INITIAL REVIEW

         The court is required to review in forma pauperis complaints to determine whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). The court must dismiss a complaint or any portion of it that states a frivolous or malicious claim, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

         Pro se plaintiffs must set forth enough factual allegations to “nudge[] their claims across the line from conceivable to plausible, ” or “their complaint must be dismissed.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“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.”).

         “The essential function of a complaint under the Federal Rules of Civil Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds for a claim, and a general indication of the type of litigation involved.'” Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint must be liberally construed, and pro se litigants are held to a lesser pleading standard than other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations omitted).

         III. DISCUSSION

         Liberally construed, Plaintiff's Complaint asserts two claims for relief under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq.

         First, Plaintiff claims employment discrimination under Title I of the ADA, which bars 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). In particular, Plaintiff claims there was a hostile work environment at the Nebraska Department of Health and Human Services. See, e.g., Shaver v. Indep. Stave Co., 350 F.3d 716, 720 (8th Cir. 2003) (to be entitled to relief on hostile work environment claim under the ADA, employee must show that: (1) he is a member of the class of people protected by the statute; (2) he was subject to unwelcome harassment; (3) the harassment resulted from his membership in the protected class; and (4) the harassment was severe enough to affect the terms, conditions, or privileges of his employment).

         Second, Plaintiff claims retaliation under Title V of the ADA, which makes it unlawful for an employer to “discriminate against any individual because such individual has opposed any act or practice made unlawful by [the ADA]....” 42 U.S.C.A. § 12203(a). That is, Plaintiff claims his employment was terminated because he complained to the personnel office about the alleged hostile work environment. See, e.g., Hill v. Walker, 737 F.3d 1209, 1218 (8th Cir. 2013) (to establish unlawful retaliation under the ADA, employee must show that: (1) he engaged in statutorily protected activity; (2) the employer took an adverse action against him; and (3) there was a causal connection between the adverse action and the protected activity”).

         Plaintiff's hostile work environment claim must be dismissed for lack of jurisdiction because Defendants are immune from suit. The United States Supreme Court has held that although Congress unequivocally intended to abrogate the States' immunity from ADA claims, Congress lacked the authority to subject the States to suits by private individuals for money damages under Title I of the ADA. Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 374 (2001); see Lors v. Dean, 746 F.3d 857, 862 (8th Cir. 2014) (the Supreme Court held in Garrett “that the Eleventh Amendment bars Title I ADA claims for money damages brought by state employees in federal court.”); Faibisch v. Univ. of Minn., 304 F.3d 797, 800 (8th Cir. 2002) (“In ... Garrett ..., the Supreme Court ruled that a state is immune from suit under Title I of the ADA unless it waives its sovereign immunity.”); see also Leighton v. Nebraska, No. 4:14CV3202, 2015 WL 1013950, at *2 (D. Neb. Mar. 9, 2015) (granting defendants' Rule 12(b)(1) motion to dismiss Title I claim brought against the State of Nebraska and the Department of Correctional Services). Plaintiff does not allege any facts in the Complaint which would allow this court to infer a waiver of sovereign immunity with respect to his Title I claim.[1]

         “Neither the Supreme Court nor the Eighth Circuit has addressed whether Title V is valid abrogation of state sovereign immunity.” Lors, 746 at 862-63 (quoting Tinzie v. Ark. Dep't of Workforce Servs., No. 4:11 CV00683 SWW, 2012 WL 1739859, at *3 (E.D.Ark. May 16, 2012)). “Shortly after the Supreme Court issued Garrett, the Ninth Circuit issued its opinion in Demshki [v. Monteith, 255 F.3d 986, 988 (9th Cir. 2001)]” and “recognized that the Supreme Court's holding in Garrett ‘necessarily applies to claims brought under Title V of the ADA, at least where, as here, the claims are predicated on alleged violations of Title I.'” Id. at 863 (quoting Demshki, 255 F.3d at 987). “Several district courts have agreed with the Ninth Circuit's reasoning in Demshki, and relied on the decision to support the holding that a Title V claim was barred by the ADA.” Id. (quoting Merbach v. N. Dakota State Water Comm'n, No. 1:13-CV-030, 2013 WL 2252916, at *3 (D.N.D. May 22, 2013) (citing cases)); see also Swatzell v. Bd. of Regents, Se. Missouri State Univ., No. 1:16-CV-00262 JAR, 2017 WL 3116150, at *4 (E.D. Mo. July 21, 2017) (“The Court concurs in the rulings of these courts that retaliation claims brought under Title V of the ADA-at least where the claims are based on alleged violations of Title I-are barred by the Eleventh Amendment.”); Dottin ...


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