Opinion
Case No. 2:04 CV 722 DAK.
January 3, 2005
ORDER
This matter is before the court on "Defendants' Motion to Dismiss, or in the Alternative, Motion for Definite Statement and to Strike Punitive Damages Claim." A hearing on the motion was held on December 16, 2004. At the hearing, plaintiff Mary Mattfeldt-Bancroft was represented by Erik Strindberg and April L. Hollingsworth of Strindberg Scholnick Chamness, LLC. Defendants were represented by Chad M. Steur of the Utah Attorney General's Office. Before the hearing, the court considered carefully the memoranda and other materials submitted by the parties. Since taking the matter under advisement, the court has further considered the law and facts relating to this motion. Now being fully advised, the court renders the following Order.
I. MOTION TO DISMISS
A. Standard of Review
In reviewing a motion to dismiss under Rule 12(b)(6), "[a]ll well-pleaded facts, as distinguished from conclusory allegations, must be taken as true." Ruiz v. McDonnel, 299 F.3d 1173, 1181 (10th Cir. 2002) (quoting Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984). "The issue in reviewing the sufficiency of a complaint is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support her claims." Id. at 1181. "The court must view all reasonable inferences in favor of the plaintiff, and the pleadings must be liberally construed." Id. The court will dismiss the complaint only if it appears that plaintiff is not entitled to relief under any set of facts that could be proven consistent with the well-pleaded allegations of the complaint.
B. Background
Plaintiff was terminated from her job as an executive assistant in the Chemistry Department of the University of Utah ("University") for "unavailability." Plaintiff alleges her rights under the Family and Medical Leave Act ("FMLA") and Rehabilitation Act were violated. Plaintiff's Complaint alleges five causes of action: (1) Interference with FMLA Rights (against all defendants); (2) Retaliation for Exercising FMLA Rights (against all defendants); (3) Violation of the Rehabilitation Act (only against the University); (4) Failure to Engage in the Interactive Process Required by the Rehabilitation Act (only against the University); and (5) Discrimination Based Upon Association with a Disabled Person in Violation of the Rehabilitation Act (only against the University).
Plaintiff's Complaint names the University and two individuals as defendants. Defendant Shari Zinik was plaintiff's supervisor in the Chemistry Department. Defendant Sandy Gunderson was an employee in the University's Human Resource Department that handled some of the plaintiff's employment issues. Defendants have moved to dismiss all causes of action against the individual defendants, Ms. Zinik and Ms. Gunderson, and to dismiss the Rehabilitation Act claims against the University. Defendants do not challenge the causes of action for violating the FMLA alleged against the University. In the alternative to a dismissal, Defendants seek an order requiring the plaintiff to provide a more definite statement and striking Plaintiff's request for punitive damages.
In 1986, Plaintiff was hit by a car while riding her bicycle. As a result of the accident, Plaintiff was diagnosed with "closed head injury syndrome." The Complaint alleges that this disability "substantially and negatively impacts [Plaintiff's] short-term memory." The Complaint also alleges that Plaintiff "has learned to deal with her disability and memory loss by keeping extensive notes."
Plaintiff began working at the University as an executive assistant in the Women's Resource Center in October of 2001. While working the Women's Resource Center, Plaintiff filled out paperwork requesting an accommodation for her disability and her supervisor responded by allowing her to take extensive notes. Problems arose when she began working as an executive assistant in the Chemistry Department in May of 2003. While working for the Chemistry Department, Plaintiff claims that one of the professors she worked for was "abusive" and not accommodating of her need to take extensive notes.
While working in the Chemistry Department, plaintiff began taking FMLA leave to care for her husband. Plaintiff's husband suffers from upper motor neuron disease, spinal atrophy, and a rare disease called "spastic paraparesis." Plaintiff's husband allegedly began experiencing these problems while serving in the Gulf War. In February of 2004, Plaintiff received notice from the University that she had exhausted her FMLA leave and that the University intended to terminate her employment unless she could provide "alternative recommendation or methods of accommodation." Plaintiff alleges she was entitled to additional FMLA leave. Plaintiff also missed some work due to a hospitalization and sickness, and there appear to be disputes between the parties as to whether Plaintiff's absence was for sickness or to care for her husband. Plaintiff was terminated in March of 2004 for "unavailability."
C. Discussion
1. Rehabilitation Act Claims
Defendants assert that Plaintiff has failed to state a claim under the Rehabilitation Act because the Complaint fails to "articulate with precision the impairment alleged and the major life activity affected by that impairment." Poindexter v. Atchison, Topeka and Santa Fe Railway Co., 168 F.3d 1228, 1232 (10th Cir. 1999). Plaintiff responds by arguing that she has met the Supreme Court's pleading requirements as set forth in Swierkiewicz v. Sorema, 534 U.S. 506 (2002).
In Swierkiewicz, the Court held that a Title VII employment discrimination complaint is not required to contain specific facts establishing a prima facie case of discrimination under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Swierkiewicz, 534 U.S. at 515. The Court held that "[t]he prima facie case under McDonnell Douglas . . . is an evidentiary standard, not a pleading requirement." Id. at 510. The Court was particularly troubled by the lower court's requirement that a plaintiff plead specific facts demonstrating "circumstances that support an inference of discrimination." Id. The Court abolished the requirement previously imposed by some circuits requiring a plaintiff to meet a heightened pleading standard when filing a discrimination complaint. The Swierkiewicz decision did not alter the standard pleading requirements imposed by Rule 8(a) of the Federal Rules of Civil Procedure.
Defendants contend the Complaint does nothing more than allege Plaintiff suffers from "forgetfulness," and therefore, the Complaint fails to allege an impairment covered by the Rehabilitation Act. Defendants' memoranda mischaracterizes the allegations contained in the Complaint. The Complaint alleges that Plaintiff is permanently disabled due to an accident that left her with "closed head injury syndrome." The Complaint further alleges that the disability substantially and negatively impacts Plaintiff's short-term memory and that the impairment can be reasonably accommodated by allowing Plaintiff to take extensive notes.
The court finds that for the purposes of a motion to dismiss, Plaintiff has alleged facts sufficient to proceed with her Rehabilitation Act claims. The court cannot say that there are no set of facts that could be proven consistent with the allegations made in the Complaint upon which relief could be granted. It may be that after discovery is conducted the undisputed facts will demonstrate that Plaintiff's condition does not qualify as a "disability" under the Rehabilitation Act. However, that is not a determination the court can make at this point in the litigation, and therefore, will deny the motion to dismiss the Rehabilitation Act claims for failing to state a claim upon which relief can be granted. In addition, the court finds that the Complaint is not so vague or ambiguous that the Defendants cannot reasonably be required to file a responsive pleading. Accordingly, Defendants' request for a more definite statement is denied.
Defendants argued at the hearing, for the first time, that the Rehabilitation Act claims should be dismissed because the Complaint only alleges that the University receives federal funding and does not specifically allege that the University receives "Rehabilitation Act monies." This argument was not properly raised in Defendants' moving papers nor does the court believe it is meritorious. Nonetheless, Defendants are not precluded from filing a motion in the future if they believe they can establish that the University of Utah does not receive any federal funding that would make it subject to the Rehabilitation Act.
2. "Association Discrimination" Under the Rehabilitation Act
Defendants argue that Plaintiff's Fifth Cause of Action should be dismissed because, unlike the American with Disabilities Act ("ADA"), the Rehabilitation Act does not contain an association discrimination provision. The ADA defines the term "discriminate" to include "excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association." 42 U.S.C. § 12112(b)(4). While it is true that there is no equivalent provision in the Rehabilitation Act, 29 U.S.C. § 794(d) of the Rehabilitation Act incorporates the ADA's standards for determining whether there has been a violation under the Act. Neither party has cited any case law that addresses whether an individual can state a claim for association discrimination under the Rehabilitation Act, and in fact, there does appear to be much case law discussing this issue. See Sifre v. Department of Health, 38 F.Supp.2d 91, 100 n. 3 (D.P.R. 1999) (the court assumed for the purposes of its opinion that the Rehabilitation Act permits a claim for association discrimination and cited to Walthall v. Fulton County Sch. Dist., 18 F.Supp.2d 1378, 1386 (N.D. Ga. 1998) because the Walthall decision utilized ADA standards in reviewing a claim for association discrimination under the Rehabilitation Act).
The court reads the Rehabilitation Act to incorporate the association provision of the ADA and therefore will not dismiss Plaintiff's Fifth Cause of Action. However, the court notes that the association provision does not entitle Plaintiff to a modified work schedule in order to care for her husband. See Den Hartog v. Wasatch Academy, 129 F.3d 1076, 1084-85 (10th Cir. 1997). Therefore, in order to prevail at trial, Plaintiff will have to prove she was excluded or otherwise denied equal jobs or benefits because of her relationship or association with her disabled husband. See 42 U.S.C. § 12112(b)(4).
3. Family and Medical Leave Act Claims
Defendants have moved to dismiss the First and Second causes of action for violation of the FMLA, 29 U.S.C. §§ 2601- 2654, against the individual defendants because they claim the FMLA does not impose individual liability upon public agency employers. Defendants urge the court to adopt the Sixth Circuit's holding in Mitchell v. Chapman, 343 F.3d 811 (6th Cir. 2003) and hold that the FMLA's individual liability provision does not extend to public agencies. Plaintiff claims that "Defendants' argument fails because it ignores more recent Tenth Circuit case law that specifically holds that public employees can be held individually liable for FMLA violations." (Pl.'s Memo. in Opp'n at 3.) Plaintiff then cites to Cornforth v. University of Oklahoma Board of Regents, 263 F.3d 1129 (10th Cir. 2001) and claims the Tenth Circuit held that public agency employees can be sued individually under the FMLA. The Plaintiff goes on to accuse Defendants' counsel of violating Utah's Rules of Professional Conduct that require "candor toward the tribunal" because Defendants cite Sixth Circuit case law when Plaintiff believes there is Tenth Circuit case law that is controlling.
Plaintiff's brief misrepresents the Tenth Circuit's holding in Cornforth. The Cornforth decision makes clear that it is not expressing an opinion as to whether the FMLA should be interpreted to hold a public agency supervisor individually liable for FMLA violations. When confronted with this issue, the court in Cornforth noted:
Our jurisdiction over this interlocutory appeal is strictly confined only to those issues involving the Eleventh Amendment. Because [defendant's] argument does not involve a claim of Eleventh Amendment immunity, it is not properly before this court. Accordingly, we can not, and do not, express any opinion on whether Cornforth's FMLA claims for injunctive relief asserted against [defendant] in his individual capacity should be dismissed either because Cornforth cannot obtain such relief against [defendant] in his individual capacity or because the term "employer" as used in FMLA should not be interpreted to include individual supervisors.263 F.3d at 1135. In contrast, the Sixth Circuit decision cited by Defendants does directly address the issue that is before the court in the instant case. See Mitchell, 343 F.3d at 831 ("We therefore conclude that the FMLA's individual liability provision does not extend to public agencies."). It is unfortunate that Plaintiff's brief focuses on questioning opposing counsel's ethics rather than discussing the relevant case law in this area.
It does not appear that the Tenth Circuit has ever addressed the issue of whether public employees can be held individually liable under the FMLA. Although never cited by Plaintiff, there is a substantial body of case law holding that public employees can be held liable under the FMLA. See Sheaffer v. County of Chatham, 337 F.Supp.2d 709, 727 (M.D.N.C. 2004) ("A majority of courts have concluded that public employees can be held liable under the FMLA."). It is also true that the Sixth Circuit is not the only court to hold that public employees cannot be held individually liable under the FMLA. See Wascura v. Carver, 169 F.3d 683, 686 (11th Cir. 1999) (concluding that FMLA claims could not be maintained against public officials); Keene v. Rinaldi, 127 F.Supp.2d 770, 778-79 (M.D.N.C. 2000) (holding that public officials cannot be held liable under the FMLA). This court agrees with the reasoning set forth in Sheaffer that "[t]he simplest reading of the statutory text compels the conclusion that public employees who act, directly or indirectly, in the interest of the public agency for which they work, may be held individually liable under the FMLA." 337 F. Supp.2d at 728. As noted in Sheaffer, discovery may reveal that the individual Defendants did not exercise the requisite level of authority over Plaintiff to qualify as employers under the FMLA, but the court is unwilling to conclude, as a matter of law, that Defendants' status as public employees requires dismissal. Id. at 728-29.
II. MOTION TO STRIKE PUNITIVE DAMAGES
Defendants have moved to strike Plaintiff's request for punitive damages under the Rehabilitation Act. Defendants motion to strike was originally based upon a state statute prohibiting "exemplary or punitive damages" against governmental entities as well as a 1996 Sixth Circuit case that held punitive damages were not recoverable under the Rehabilitation Act. Utah Code Ann. 63-30d-603(1)(a); Moreno v. Consolidated Rail Corp. 99 F.3d 782, 790 (6th Cir. 1996). Plaintiff claims that punitive damages are recoverable under § 504 of the Rehabilitation Act and cites a series of district court cases that allowed punitive damages under the Rehabilitation Act. Defendants' reply brief states that there appears to be a conflict among the Circuits as to whether punitive damages are recoverable and that this is a matter of first impression in the Tenth Circuit.
Surprisingly, neither party mentions the Supreme Court's decision in Barnes v. Gorman, 536 U.S. 181 (2002). The sole issue decided by the Court in Barnes was whether punitive damages may be awarded in private causes of action brought under § 202 of the ADA and § 504 of the Rehabilitation Act. Id. at 183. The Court held that punitive damages "may not be awarded in suits brought under § 202 of the ADA and § 504 of the Rehabilitation Act." Id. at 189. All of the district court cases cited by Plaintiff were decided prior to the Supreme Court's decision in Barnes. Based upon the Court's holding in Barnes, Defendants' request to strike Plaintiff's request for punitive damages will be granted.
III. CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that: (1) Defendants' Motion to Dismiss is DENIED; (2) Defendants' Motion for a More Definite Statement is DENIED; and (3) Defendants' Motion to Strike Punitive Damages is GRANTED.