United States District Court, D. Nebraska
SUZETTE D. DUTCHER, Plaintiff,
THE STATE OF NEBRASKA DEPARTMENT OF CORRECTIONS, Defendant.
FINDINGS AND RECOMMENDATION
Michael D. Nelson United States Magistrate Judge.
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.
purposes of this motion the Court will accept as true the
facts set forth the Complaint (Filing No. 1-1) and
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.”
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.
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.
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).
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).
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).
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.
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 ...