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Dutcher v. State, Department of Corrections

United States District Court, D. Nebraska

August 15, 2019



          Michael D. Nelson United States Magistrate Judge.

         This matter is before the Court on the Motion for Partial Judgment on the Pleadings (Filing No. 12) filed by the defendant, the State of Nebraska Department of Corrections (“NDCS”). The NDCS requests that the Court dismiss Count II of Plaintiff's Complaint filed under the Americans with Disabilities Act, 42 U.S.C. § 1201 et seq., as barred by sovereign immunity. For the following reasons, the undersigned magistrate judge will recommend that the motion be granted.


         For purposes of this motion the Court will accept as true the facts set forth the Complaint (Filing No. 1-1) and summarized below:[1]

         Plaintiff, Suzette Dutcher, began working for the NDCS in 2002 as a “CDC Supervisor” at the NDCS Work Ethic Camp in McCook, Nebraska. (Filing No. 1-1 at p. 3). On April 21, 2015, Dutcher suffered a right knee injury during work-related training on take-down techniques and timely notified the NDCS of the injury. Dutcher subsequently underwent right knee surgeries in July, September, and October 2015, and was given lifting restrictions and “medical restrictions of no squatting, stooping, twisting, bending, crawling, or kneeling.”

         The NDCS initially accommodated Dutcher's restrictions and allowed her to ask other employees to perform lifting that exceeded her restrictions. The NDCS also required that she be accompanied at all times by a Level 3 PPCT-certified employee whenever she interacted with inmates. (Filing No. 1-1 at pp. 3-4). Dutcher's knee injury prevented her from certifying in or performing Level 3 PPCT take-down techniques. However, performing Level 3 PPCT take-down techniques and restraints on inmates were not part of Dutcher's regular job duties as CDC Supervisor. Dutcher also was always reasonably close to other NDCS employees trained in Level 3 PPCT should it be required. During her employment, Dutcher's work performance met or exceeded the NDCS' legitimate expectations and she consistently received satisfactory and/or excellent performance reviews.

         On September 15, 2016, Dutcher received a letter from the NDCS stating she could not remain in her position if she continued to have restrictions and was given ninety days to find another position or be terminated. (Filing No. 1-1 at p. 4). Dutcher's supervisor requested that Dutcher's position be downgraded to Level 2 PPCT, which was in closer alignment with her actual job duties and would remedy the perceived restriction regarding her inability to become Level 3 PPCT certified. In October or November 2016, a NDCS Human Resources Representative informed Dutcher that her requested downgrade was denied and that there were no other positions available at the location where Dutcher worked that could accommodate her abilities. On December 16, 2016, the NDCS terminated Dutcher's employment for failing to complete Level 3 PPCT training and for failing to fulfill her position's regular duties.

         On September 12, 2018, Dutcher filed a Complaint against the NDCS in Nebraska state court, alleging in Count I that her employment was terminated by the NDCS on the basis of her disability in violation of the Nebraska Fair Employment Practices Act (“NFEPA”), Neb. Rev. Stat. § 48-1104 et seq., and in Count II that the NDCS violated the ADA by failing to provide her with reasonable accommodations, subjecting her to an adverse employment action on the basis of her disability, and by retaliating against her for attempting to exercise her rights under the ADA. Dutcher seeks past lost wages and benefits, reinstatement and/or front pay, compensatory damages, reasonable attorney fees, “and for such other and further relief as the Court deems just and equitable.” (Filing No. 1-1). The NDCS removed the case to this Court and filed the instant motion for judgment on the pleadings seeking dismissal of Dutcher's ADA claim on the basis of Eleventh Amendment sovereign immunity. (Filing Nos. 11-12).


         “After the pleadings are closed - but early enough not to delay trial - a party may move for judgment on the pleadings.” Fed. R. Civ P. 12(c). A court reviews a Rule 12(c) motion under the same standard governing Rule 12(b)(6) motions.” Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). “A motion for judgment on the pleadings should be granted when, accepting all facts pled by the nonmoving party as true and drawing all reasonable inferences from the facts in favor of the nonmoving party, the movant has clearly established that no material issue of fact remains and that the movant is entitled to judgment as a matter of law.” Schnuck Mkts., Inc. v. First Data Merch. Servs. Corp., 852 F.3d 732, 737 (8th Cir. 2017) (citation omitted).

         A court must dismiss an action if at any time it determines that it lacks subject-matter jurisdiction. See Fed.R.Civ.P. 12(h)(3). “Under [Fed. R. Civ. P. 12(h)(3)], either the court or any party may raise an issue of subject-matter jurisdiction at any time, and the Eleventh Amendment is regarded, at least for this purpose, as going to subject-matter jurisdiction.” Fromm v. Comm. of Veterans Affairs, 220 F.3d 887, 890 (8th Cir. 2000).


         The Eleventh Amendment bars suits against states in federal court unless the state has clearly and unequivocally waived its immunity, Sossamon v. Texas, 563 U.S. 277, 284 (2011), or unless Congress has validly abrogated the states' immunity, Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 363 (2001). This immunity extends to state agencies such as the NDCS. See Doe v. Nebraska, 345 F.3d 593, 597 (8th Cir. 2003); Neb. Rev. Stat. § 83-171. The NDCS argues that sovereign immunity bars Dutcher's ADA claim as there has been no valid abrogation of its immunity nor an unequivocal waiver.

         Dutcher's Complaint does not identify which provision of the ADA she is bringing her claim under, but her allegations best fit under Title I, which 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). Although Congress unequivocally intended to abrogate the states' immunity for claims under Title I of the ADA, the Supreme Court in Garrett held that Congress's abrogation attempt was not made pursuant to a valid grant of constitutional authority. Garrett, 531 U.S. at 374. Accordingly, states and state agencies are immune from suits by private individuals for money damages under Title I of the ADA unless the state has clearly and unequivocally waived its immunity. See id.; see also Lors v. Dean, 746 F.3d 857, 862 (8th Cir. 2014) (recognizing Garrett's holding that “the ...

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