Opinion
Cause No. 1:02-cv-1242-DFH as JUDGE,
February 24, 2003
ENTRY ON MOTION TO DISMISS
This case concerns the termination of plaintiff Kimberly O'Reilly from her position as a probation officer in Montgomery County, Indiana. The defendants are the Montgomery County Probation Department ("the Probation Department"); Montgomery County, being sued as the Montgomery County Board of Commissioners ("Montgomery County"); the Circuit, Superior, and County Courts of Montgomery County; the Hon. Raymond M. Kirtley; the Hon. Thomas K. Milligan; the Hon. David A. Ault (the courts and the judges are referred to collectively as "the judicial defendants"); and Michael P. Kazjer, the Chief Probation Officer of Montgomery County. The court has jurisdiction pursuant to 28 U.S.C. § 1331.
In Count 1, O'Reilly alleges that Montgomery County, the Probation Department, and the judicial defendants violated the pregnancy discrimination provisions of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. In Count 2, she alleges that Montgomery County, the Probation Department, and the judicial defendants violated her rights under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. In Counts 3 and 4, O'Reilly alleges that Montgomery County and the Probation Department violated the Americans with Disabilities Act ("ADA"), 42 U.S.C § 12111 et seq. Finally, in Count 5, O'Reilly alleges that her rights under the Equal Protection Clause of the Fourteenth Amendment were violated and has stated claims under 42 U.S.C. § 1983 against the judges and Chief Probation Officer Kazjer in their individual capacities.
Defendants Montgomery County and the Probation Department filed a partial motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) and for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6). Defendant Kazjer, the Chief Probation Officer, joined in this motion and filed an additional motion for judgment on the pleadings, adopting the briefs submitted by Montgomery County and the Probation Department.
The judicial defendants also filed a motion to dismiss for lack of subject matter jurisdiction, for failure to file suit within the 90-day statutory limitation period, for failure to name them as defendants in the Equal Employment Opportunity Commission ("EEOC") charge, and because they are not "persons" within the meaning of Section 1983.
For the reasons stated below, the defendants' motions to dismiss are granted with respect to all of O'Reilly's claims except the Section 1983 claims against Kazjer and the judges in their individual capacities.
The Applicable Legal Standard
For purposes of a motion to dismiss under Rule 12(b)(6), the court takes as true the plaintiff's factual allegations and draws all reasonable inferences in favor of that party. Veazey v. Communications Cable of Chicago, Inc., 194 F.3d 850, 853 (7th Cir. 1999). "Dismissal under Rule 12(b)(6) is proper only if the plaintiff could prove no set of facts in support of his claims that would entitle [her] to relief." Chavez v. Illinois State Police, 251 F.3d 612, 648 (7th Cir. 2001).
Background
Taking the well-pleaded factual allegations as true, plaintiff O'Reilly began employment as a probation officer on March 3, 1999. Am. Cplt. ¶ 18. She alleges that she suffers from mental impairments that affect her ability to work. Id., ¶ 19. In late 2000, she became pregnant. On March 5, 2001, she suffered from medical complications requiring her to be placed on bed rest. Id., ¶ 24. In the twelve months immediately preceding March 5, 2001, O'Reilly worked more than 1,250 hours and had not exhausted twelve weeks of FMLA leave. Id., ¶¶ 26-24. She was released by her physician to return to work on a part-time basis beginning April 30, 2001. Id., ¶ 29.
O'Reilly alleges that when she returned to work on April 30, 2001, her direct supervisor, defendant Kazjer, inquired into her medical complications and plans for taking maternity leave. Id., ¶ 32. On May 3, 2001, she received a letter bearing the signatures of defendants Kazjer, Judge Kitley, Judge Milligan, and Judge Ault stating that she was being terminated immediately for errors found in her work while she was on medical leave. Id., ¶¶ 33-34. O'Reilly denies making mistakes serious enough to warrant dismissal. Id., ¶ 36.
Discussion
I. Preliminary Matters — The Montgomery County Defendants
In their motion to dismiss, the county defendants argue that the Board of Commissioners of Montgomery County and Montgomery County were not O'Reilly's "employer" under Title VII, the ADA, or the FMLA. Identification of an employer for purposes of the federal employment discrimination acts "is a question of federal law." Carver v. Sheriff of LaSalle County, Illinois, 243 F.3d 379, 382 (7th Cir. 2001), citing Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 754-55 (1998).
Under Title VII and the ADA, an employer is defined in general terms as "a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year." 42 U.S.C. § 12111(5); 42 U.S.C. § 2000e(b). Similarly, an employer under the FMLA is any person engaged in commerce or industry affecting commerce who employs 50 or more employees and any "public agency" as defined in 29 U.S.C. § 203(x). 29 U.S.C. § 2611(4). Under all three acts, an employee is defined tautologically as an individual "employed by an employer," with certain limited exceptions. See 42 U.S.C. § 2000e(f) (Title VII); 42 U.S.C. § 12111(4) (ADA); 29 U.S.C. § 2611(3) and 203(e) (FMLA).
Since the language of the various federal employment discrimination statutes defining employer and employee is virtually identical, the Seventh Circuit has often interpreted them identically as well. See E.E.O.C. v. Sidley Austin Brown Wood, 315 F.3d 696, 708 (7th Cir. 2002) (Easterbrook, J., concurring) (courts are not condemned "to wandering forever through the mist like the Flying Dutchman" since "a definition may be secured from opinions that have addressed these other statutes").
The identity of O'Reilly's employer is important because of the Eleventh Amendment and sovereign immunity. If the employer was the local county government, then the Eleventh Amendment is not a factor. See Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 369 (2001). If, however, her employer was the state judiciary, then the Eleventh Amendment's grant of sovereign immunity would bar suit under the ADA and the FMLA. See, e.g., id. at 367-68.
O'Reilly argues that the identity of her employer is a question of fact that cannot properly be decided on a motion to dismiss pursuant to Rule 12(b)(6). Her amended complaint alleges that Montgomery County was her employer for purposes of the ADA, FMLA, and Title VII. Am. Cplt. ¶ 13. O'Reilly argues that the court must accept this allegation as true at this stage. However, the allegation is a legal conclusion, which the court is "not obliged to accept as true." Hickey v. O'Bannon, 287 F.3d 656, 657-58 (7th Cir. 2002) (affirming dismissal for failure to state a claim upon which relief could be granted). Also, this issue is one properly decided on a motion to dismiss because the main indicia of employment, the right to control, is prescribed by Indiana statute.
The controlling standards in the Seventh Circuit were established in Alexander v. Rush North Shore Medical Center, 101 F.3d 487 (7th Cir. 1996). In Alexander, the plaintiff had staff privileges as an anesthesiologist at Rush North Shore Medical Center. As a condition of his privileges, he was required to spend a certain amount of time per week "on call" for the hospital's emergency room. Id. at 489. When the hospital later revoked his staff privileges for violation of the on-call policy, Dr. Alexander filed a lawsuit claiming that the hospital had discriminated against him because of his religion and national origin in violation of Title VII. Id. at 489-90. The hospital asserted that Dr. Alexander had no claim under Title VII because there was no employer-employee relationship.
The Seventh Circuit identified five factors to consider in deciding whether an individual is an employee: "(1) the extent of the employer's control and supervision over the worker, including directions on scheduling and performance of work, (2) the kind of occupation and nature of skill required, including whether skills are obtained in the workplace, (3) responsibility for the costs of operation, such as equipment, supplies, fees, licenses, workplace, and maintenance of operations, (4) method and form of payment and benefits, and (5) length of job commitment and/or expectations." Id. at 492, citing Ost v. West Suburban Travelers Limousine, Inc., 88 F.3d 435, 440 (7th Cir. 1996).
Of those factors, the employer's right to control is the most important. Alexander, 101 F.3d at 492-93. "If an employer has the right to control and direct the work of an individual not only as to the result to be achieved, but also as to the details by which that result is achieved, an employer/employee relationship is likely to exist." Id. at 493 (citations omitted). Indiana state law provides:
Probation officers shall serve at the pleasure of the appointing court and are directly responsible to and subject to the orders of the court. The amount and time of payment of salaries of probation officers shall be fixed by the court consistent with section 8 of this chapter to be paid out of the county or city treasury by the county auditor or city controller.
Ind. Code § 11-13-1-1(c) (emphasis added). Thus, in the case of a probation officer like O'Reilly, the right of control lies with the appointing court. Furthermore, the Indiana Court of Appeals recently held: "Because Probation is an arm of the court, it like the court itself is a state entity and therefore not a `person' under § 1983." J.A.W. v. State, 650 N.E.2d 1142, 1150-51 (Ind.App. 1995) (affirming in relevant part trial court's grant of summary judgment in favor of probation officer because any suit against him "in his official capacity is a suit against a state entity and cannot be maintained under § 1983"), aff'd in relevant part, 687 N.E.2d 1202, 1203 n. 3 (Ind. 1997); cf. Gisler v. City of Indianapolis, 1997 WL 33330756, *5 (S.D.Ind. Aug. 26, 1997) (employee of Marion County Municipal Court was an employee of state for purposes of Section 1983; "test used to determine whether an employer-employee relationship exists is `the right to direct and control the conduct of the employee at the time the negligent act occurred.'") (citations omitted); Parsons v. Bourff, 739 F. Supp. 1266, 1267 (S.D.Ind. 1989) (clerk of court is a judicial, and therefore state, employee despite county-wide election to office).
In J.A.W., an eight year old boy facing charges of juvenile delinquency was taken into state custody by probation officers. 650 N.E.2d 1142, 1146 (Ind.App. 1995). He was placed in a foster home, where he was repeatedly sexually abused by his foster father and his foster father's male friends. Id. at 1146. Despite the fact that the boy was under the supervision of social workers and probation officers, this abuse lasted from 1978 until 1989. Id. After his foster father pled guilty to charges of molestation, the boy brought claims against the probation officers, alleging a violation of his federal rights. Id. In affirming summary judgment for the probation department, the Indiana Court of Appeals noted that the probation officers' duties are "prescribed by statute and consist solely of assisting the court and performing such duties as the court may direct." Id. at 1150. The court also explained that "the fact that Probation receives funding from the county is not indicative of county status." Id. Rather, the "funding of Probation by the county is . . . merely reflective of the longstanding policy of funding state courts through county revenues." Id. at 1151.
Thus, the fact that the Montgomery County Council approved Kazjer's request to hire an additional probation officer in the county demonstrates only this financial relationship between the two branches, which was fully considered in J.A.W. See also Allen County Council v. Allen Circuit Court, 38th Judicial Dist., 549 N.E.2d 364, 366 (Ind. 1990) (affirming circuit judge's mandate to county officials to authorize additional assistant probation officers and to reclassify a secretary as a full-time employee). The fact that the funds ultimately come from the local municipality is not controlling. See Carver v. Sheriff of LaSalle County, Illinois, 243 F.3d 379, 382 (7th Cir. 2001) ("But the source of funds need not coincide with the identity of the employer.").
The duties of probation officers are prescribed by statute and consist solely of assisting the court and performing such tasks as the court may direct. Ind. Code § 11-13-1-3. Probation officers also serve at the sole discretion of the court. Id. Accordingly, for purposes of Title VII, the ADA, and the FMLA, O'Reilly was an employee of the state judiciary. See Alexander, 101 F.3d at 492-93 (most important factor is employer's right to control).
O'Reilly herself alleged that Chief Probation Officer Kazjer and the defendant judges ordered and authorized her termination. This fact weighs further in favor of a determination that the state was her employer. See Am. Cplt. ¶¶ 33-34.
The only claims against Montgomery County were claims under the ADA, FMLA, and Title VII. As a result, the claims against defendants Montgomery County, being sued as Montgomery County Board of Commissioners, are dismissed for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6).
The court now turns to the remaining defendants, Kazjer, the Probation Department, and the judicial defendants. The remaining claims against the judicial defendants are those under Title VII, the FMLA, and Section 1983 (the latter claim against them only in their individual capacities). The remaining claims against the Probation Department are under Title VII, the FMLA, and the ADA. The remaining claim against Kazjer is under Section 1983 in his individual capacity.
II. The EEOC Charge and the Amended Complaint
The judicial defendants argue that because they were not named in O'Reilly's charge filed with the EEOC and because the amended complaint adding them as defendants was filed outside of the 90-day period for filing suit, the Title VII and FMLA claims against them must be dismissed. This argument is not persuasive, at least on the motion to dismiss.
When "an unnamed party has been provided with adequate notice of the charge, under circumstances where the party has been given the opportunity to participate in conciliation proceedings aimed at voluntary compliance, the charge is sufficient to confer jurisdiction over that party." Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130, 657 F.2d 890, 905 (7th Cir. 1981) (reversing district court's dismissal of party for failure to name in EEOC charge because defendants had notice); see also Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 127-26 (7th Cir. 1989) (affirming district court's dismissal of party not named in EEOC charge for lack of sufficient notice), citing Eggleston, 657 F.2d at 905.
In this case, the plaintiff has come forward with evidence that the judicial defendants had ample notice that O'Reilly had initiated the complaint process with the EEOC regarding her termination. The judges had received correspondence concerning the investigation and should have been aware of any litigation involving the Probation Department. See Pl. Resp. Ex. B (letter copied to all three judges later named in suit informing them of pending EEOC investigation). They also had ample opportunity to participate in the conciliation process. Id. (informing judges of possibility of interview with EEOC investigator); see also Eggleston, 657 F.2d at 907 (after the added defendant learned of charge either through named defendants or others, "nothing prevented it from attempting to resolve the alleged discrimination in an amicable manner," satisfying opportunity for conciliation requirement).
As for the judicial defendants' argument that the amended complaint naming them was filed outside of the 90-day filing period, the court granted plaintiff leave to amend her complaint and ordered that it be related back to the original filing date, which was within the 90-day statutory time period. See Sessions v. Rush State Hospital, 648 F.2d 1066, 1069-70 (5th Cir. 1981) (as "long as the Title VII claim is based on the discrimination originally charged in the complaint, allowing it to relate back . . . works no hardship on the defendant for the original complaint furnished adequate notice of the nature of the suit"). Rule 15(c) allows a plaintiff to amend a complaint and to have the amendment relate back to the date of the original filing. Fed.R.Civ.P. 15(c). "The four prerequisites to a `relation back' amendment under Rule 15(c) are: (1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it; and (4) the second and third requirements must have been fulfilled within the proscribed limitations period." Worthington v. Wilson, 8 F.3d 1253, 1255-56 (7th Cir. 1993). It is not disputed that the basic claim arises out of the conduct set forth in the original complaint.
Under Seventh Circuit law, Rule 15(c)(3) permits an amendment to relate back to the original complaint "`where there has been an error made concerning the identity of the proper party and where that party is chargeable with knowledge of the mistake.'" Baskin v. City of Des Plaines, 138 F.3d 701, 704 (7th Cir. 1998), citing Worthington, 8 F.3d at 1256. "A legal mistake concerning whether to sue an institutional or individual defendant brings the amendment within the purview of Rule 15(c)(3)(B), and public officials are charged with the knowledge that they are the appropriate targets of Section 1983 suits." Donald v. Cook County Sheriff's Dep't, 95 F.3d 548, 557 (7th Cir. 1996).
As discussed above, the judicial defendants had actual notice of the pending EEOC charges. See Pl. Resp. Ex. B (letter copied to all three judges later named in suit informing them of pending EEOC investigation). At least on a motion to dismiss, that letter supports an inference that the judges would also have learned of the subsequent litigation. The judicial defendants "have received such notice that [they] will not be prejudiced in maintaining [a] defense." Worthington, 8 F.3d at 1255-56. Furthermore, the plaintiff made a legal mistake in determining that her employer was Montgomery County and not the judicial defendants. As stated above, this type of mistake "brings the amendment within the purview of Rule 15(c)(3)(B)." Donald, 95 F.3d at 557. Thus, the judicial defendants' motion to dismiss is not granted for these reasons. It is granted in part, however, for the reasons discussed below.
III. Employee Status Under Title VII and the FMLA
The next issue to be resolved is whether O'Reilly was a covered employee under Title VII or the FMLA. Under Title VII and the FMLA, certain employees are exempted from protection:
The term "employee" means an individual employed by an employer, except that the term "employee" shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision. With respect to employment in a foreign country, such term includes an individual who is a citizen of the United States.42 U.S.C. § 2000e(f) (emphasis added). The FMLA provides a virtually identical exemption. See 29 U.S.C. § 2611(3), 203(e)(2)(C). Thus, the first question is whether O'Reilly was covered by a civil service statute.
A. The Civil Service Exception to the Exception
O'Reilly seeks to avoid the exception by arguing that she was an "employee subject to the civil service laws" of the state of Indiana. The relevant portion of the Indiana "merit employment" statute provides:
State service means public service by:
* * *
(2) employees and officers, except members of boards and commissions or individuals hired for or appointed to . . . positions as appointing authorities, deputies, assistants reporting to appointing authorities, or supervisors of major units within state agencies, irrespective of the title carried by those positions, of . . . [followed by a listing of those departments that are specifically included as being covered employees].
Ind. Code § 4-15-2-3.8. Plaintiff argues that, since the statute does not specifically exclude probation officers, they must be covered. The argument is not persuasive. The merit employment statute starts with the general proposition that employees and officers are included, followed by a listing of the included agencies and departments. See id. In the middle of the paragraph, upper management of the specified departments and agencies are excluded from the definition. But not all state departments and agencies are covered by this statute. Departments and agencies that are not specifically mentioned as covered are not covered. See, e.g., Americanos v. Carter, 74 F.3d 138 (7th Cir. 1996) (affirming dismissal under Rule 12(b)(6); deputy attorney general exempted from Indiana civil service laws), citing Ind. Code § 4-15-2-3.8. The only statute governing probation officers is Indiana Code § 11-13-1-1 et seq. It cannot be construed as a civil service statute because probation officers serve at the pleasure of the appointing court. Since court probation departments are not listed as specifically covered departments in the state "merit" personnel statute, there is no indication here that O'Reilly was covered by any civil service law that might neutralize the statutory exception for staff of elected officials.
In any event, O'Reilly's sole argument that she is a covered employee rests on the assumption that she is in fact an employee of the county and not the state. This assumption, as discussed above, is erroneous.
B. Was O'Reilly an Exempt Employee?
The next question that must be answered in order to determine whether O'Reilly was a covered employee for purposes of Title VII and the FMLA is whether she was "exempt" as a staff member of elected officials. See 42 U.S.C. § 2000e(f); 29 U.S.C. § 2611(3), 203(e)(2)(C).
The test for determining whether someone is an exempt "employee" under 42 U.S.C. § 2000e(f) is the same test for determining whether a position is exempt from the Supreme Court's prohibitions on politically motivated firing first announced in Elrod v. Burns, 427 U.S. 347 (1976), and Branti v. Finkel, 445 U.S. 507 (1980), and extended to hiring in Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990). See Americanos v. Carter, 74 F.3d 138, 144 (7th Cir. 1996) (affirming dismissal under Rule 12(b)(6); deputy attorney general in Indiana is exempt employee under Title VII), citing Heck v. City of Freeport, 985 F.2d 305, 310 (7th Cir. 1993) (applying identical provision under Age Discrimination in Employment Act to general inspector for local health department, and affirming grant of summary judgment in favor of defendant).
In Elrod v. Burns, the Court held that politically-motivated firings of low-level public employees could violate their First Amendment rights, but the controlling concurring opinion of Justice Stewart made clear that the holding was limited to "nonpolicymaking, nonconfidential employees." 427 U.S. at 375 (Stewart, J., concurring). In Branti v. Finkel, the Supreme Court explained Elrod and rephrased the issue as "whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved." 445 U.S. at 518. The Court held in Branti that an assistant public defender could not be fired for political reasons, but it relied heavily on a public defender's responsibilities to her clients, as distinct from the broader public responsibilities of officials such as prosecutors. Id. at 519 n. 13 (declining to express opinion on position of deputy prosecutor).
In a context similar to this case — deputy attorneys general — the Seventh Circuit described the relevant test for the Elrod/Branti doctrine and 42 U.S.C. § 2000e(f) as "whether the position held by the individual authorizes, either directly or indirectly, meaningful input into governmental decisionmaking on issues where there is room for principled disagreement on goals or their implementation." Americanos, 74 F.3d at 141, quoting Heideman v. Wirsing, 7 F.3d 659, 663 (7th Cir. 1993); see also Kline v. Hughes, 131 F.3d 708, 709-10 (7th Cir. 1997); Flenner v Sheahan, 107 F.3d 459, 462 (7th Cir. 1997) (following functional approach of Branti and stating that employee who "performs primarily ministerial functions and who has little autonomy or discretion in performing his duties is not subject to patronage dismissal"). The court is required to "examine the `powers inherent in a given office,' rather than the actual functions" that a particular occupant of the office performed. Americanos, 74 F.3d at 141, quoting Heck v. City of Freeport, 985 F.2d at 309, which in turn quoted Tomczak v. City of Chicago, 765 F.2d 633, 641 (7th Cir. 1985).
The Seventh Circuit case dealing with a position nearly identical to O'Reilly's was Klunk v. County of St. Joseph, 170 F.3d 772, 776 (7th Cir. 1999). In Klunk, the Director of Intake for the St. Joseph County Juvenile Probation Department decided to run for election to the St. Joseph County School Board, a part-time position. Id. at 774. The judge who supervised the plaintiff "thought that School Board membership would present a conflict of interest as Klunk would be perceived as representing the interests of the Juvenile Probation Department while serving on the School Board." Id. Several days after Klunk's candidacy became official, the judge asked for Klunk's resignation. Klunk brought suit alleging that he was terminated in retaliation for running for election to the school board in violation of the First Amendment. The case was tried to a jury, but at the close of trial the judge granted judgment as a matter of law for defendants. The Seventh Circuit affirmed, stating that Klunk's termination did not run afoul of the First Amendment because the position was one of "loyalty and confidence," and as the director of intake, the plaintiff exercised "substantial discretion on a daily basis." Id. at 776, citing Larson v. Cantrell, 974 F. Supp. 1211, 1216-17 (N.D.Ind. 1997).
In Larson v. Cantrell, in turn, a judge fired a probation officer and a chief probation officer, allegedly based on their political affiliation. 974 F. Supp. 1211 (N.D.Ind. 1997). In granting those defendants' motion for summary judgment, Judge Lozano stated that, at a minimum, probation officers' duties included "`indirect' yet `meaningful input' on politically sensitive discretionary decisions by Judges regarding bail, sentencing, and defendant rehabilitation." Id. at 1217 (applying Branti, 445 U.S. at 519). Neither the probation officer nor the chief probation officer were protected positions under the First Amendment. Id.; see also Americanos, 74 F.3d at 144 (holding as a matter of law that the deputy attorney general was not an "employee" protected under Title VII or the ADEA); Livas v. Petka, 711 F.2d 798, 800-01 (7th Cir. 1983) (elected prosecutor "was entitled to demand absolute loyalty from his assistants," and if he lost confidence in an assistant "for whatever reason," that loss of confidence was sufficient to justify firing the assistant).
O'Reilly argues that whether she had meaningful input into the decision-making process is a question of fact to be determined by a jury. She also argues that her case is different from Americanos because she had no "meaningful decision-making authority," and the duties of a probation officer are ministerial and administrative in nature. In so doing, she cites to Indiana Code § 11-13-1-3, which sets out the mandatory duties of a probation officer.
O'Reilly's arguments are not persuasive. First, whether a probation officer is an exempt employee under Title VII and the FMLA is a question of law and properly decided on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). See Americanos, 74 F.3d at 140, 144 (affirming Rule 12(b)(6) dismissal and holding as a matter of law that the deputy attorney general was not an "employee" protected under Title VII or the ADEA despite similar arguments on the need for factual development).
Second, the ultimate question is not whether O'Reilly herself had "meaningful decision-making authority," but rather "whether the position held by the individual authorizes, either directly or indirectly, meaningful input into governmental decisionmaking on issues where there is room for principled disagreement on goals or their implementation." Americanos, 74 F.3d at 141 (emphasis added), quoting Heideman v. Wirsing, 7 F.3d 659, 663 (7th Cir. 1993). The employee need not be the ultimate decision-maker. She must have only meaningful input into governmental decision-making. By statute, probation officers are required "to assist the courts in making pretrial release decisions," and "to assist the courts, prosecuting attorneys, and other law enforcement officials in making decisions regarding the diversion of charged individuals to appropriate noncriminal alternatives." Ind. Code. § 11-13-1-3(2), (3). See Larson, 974 F. Supp. at 1217.
Third, Americanos reinforced the well-established principle that the court must examine the powers inherent in a given office, not the actual functions that a particular occupant of the office might have performed. Id. at 141, citing Heck, 985 F.2d at 309. While the duties that O'Reilly herself actually performed might have been more limited, under the statute, the job of a probation officer necessarily requires constant decision-making and by definition involves the exercise of a great deal of professional discretion. The probation officer is the professional upon whose recommendations the court relies in coming to important decisions. Each recommendation or decision made by a probation officer may promote or undermine the policies and stature of the prosecuting attorneys, the trial judges, and the state judicial system in general. O'Reilly's attempt to equate her position with that of an administrative assistant is without merit. See Larson, 974 F. Supp. at 1216-17.
Thus, as a probation officer, O'Reilly was "an appointee on the policy making level" under 42 U.S.C. § 2000e(f) and 29 U.S.C. § 203(e)(2)(C) and was not an "employee" for purposes of Title VII and the FMLA. The Probation Department and the judicial defendants are entitled to judgment as a matter of law on O'Reilly's Title VII and FMLA claims. The court now turns to the remaining claims against the Probation Department, the judicial defendants, and Kazjer.
IV. The Judicial Defendants, the Probation Department, and Kazjer
Plaintiff has alleged that the Probation Department violated the ADA and that Kazjer and the judges violated Section 1983. In response, the remaining defendants have raised two main arguments. First, in response to the claims under the ADA and the FMLA, the Probation Department and the judicial defendants argue that the court lacks subject matter jurisdiction based on the Eleventh Amendment's grant of sovereign immunity. Second, Kazjer and the judges argue that, to the extent they have been sued in their official capacity, they are not "persons" within the meaning of Section 1983.
In her complaint, O'Reilly asserted a claim under Section 1983 against the judges and Kazjer in their individual capacities. Under each count, however, the plaintiff reincorporates all previously alleged paragraphs. This approach appears to have led to some of the confusion which prompted the defendants to brief and seek relief of all claims, including claims that have not been pled. See Judicial Def. Br. at 1-2 (arguing against claims under the ADA and Section 1983 in official capacities). However, to the extent that defendants were sued in their official capacities, the motion to dismiss is granted.
A. Subject Matter Jurisdiction and the Eleventh Amendment
As indicated above, the county defendants have been dismissed, and the proper remaining defendants are the Montgomery County Circuit Court, Montgomery County Superior Court, County Courts of Montgomery County, Judge Kirtley, Judge Milligan, Judge Ault, the Montgomery County Probation Department, and Kazjer. These remaining defendants, the judges of the Circuit, County, and Superior Courts of Indiana, are officials of the state and not officials of the municipality in which they sit for purposes of the Eleventh Amendment. See Woods v. City of Michigan City, 940 F.2d 275, 279 (7th Cir. 1991) (since "Superior Court judges in Indiana are considered to be officials of the state," city could not be held liable under § 1983 for judge's issuing illegal bond schedule absent some showing of municipal policy). As discussed above, the Montgomery County Probation Department is properly considered a part of the state judiciary.
The Probation Department and the judicial defendants argue that this court may not exercise subject matter jurisdiction over plaintiff's ADA and FMLA claims, drawing on some of the many cases that describe the Eleventh Amendment as a bar to federal subject matter jurisdiction. See, e.g., Crosetto v. State Bar of Wisconsin, 12 F.3d 1396, 1400-03 (7th Cir. 1993); but see Smith v. Wisconsin Dep't of Agriculture, 23 F.3d 1134, 1139-40 (7th Cir. 1994) (arguing that Eleventh Amendment immunity should be deemed instead a waivable affirmative defense, but following Crosetto as circuit precedent). O'Reilly does not address the issue of sovereign immunity in her brief.
The esoteric question is whether the Eleventh Amendment defeats subject matter jurisdiction, or is an affirmative defense on the merits, or is a creature unto itself. The Supreme Court has denied having reached any firm conclusion on the subject, see Wisconsin Dept. of Corrections v. Schacht, 524 U.S. 381, 391 (1998) ("a question we have not decided"), but the Seventh Circuit has recognized the clear implications of Schacht: "the Eleventh Amendment does not deprive the federal court of its subject-matter jurisdiction." Higgins v. Mississippi, 217 F.3d 951, 953 (7th Cir. 2000). The Eleventh Amendment defense is unusual in that a court may raise the defense itself. Id. at 954. But the essential characteristics of a defect in subject matter jurisdiction are that a court must raise the issue itself, and that a party may not waive the defect. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 95 (1998); Smith v. Wisconsin Dep't of Agriculture, 23 F.3d at 1140. An Eleventh Amendment defense does not have either of these characteristics.
Plaintiff's claims under the ADA, to the extent that she is suing the state in the form of the Probation Department, are barred by the Eleventh Amendment. Based on Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), the ADA claim against the Probation Department, and the judicial defendants to the extent that they think they are named in this claim, must be dismissed. Based on Schacht and Higgins, the dismissal should be not jurisdictional but on the merits, for failure to state a claim upon which relief can be granted.
Only the Probation Department and Montgomery County are named in the claim under the ADA in Counts 3 and 4. See Am. Cplt. ¶¶ 51-57 (judicial defendants not named).
The court has already determined that plaintiff is not a covered employee under the FMLA. However, even if that were not the case, O'Reilly's claims under the FMLA would be barred by the Eleventh Amendment's grant of sovereign immunity. The Supreme Court and the Seventh Circuit have not yet ruled that the Eleventh Amendment prohibits suits against states under the FMLA, but several circuit courts have. See, e.g., Laro v. New Hampshire, 259 F.3d 1, 16-17 (1st Cir. 2001); Lizzi v. Alexander, 255 F.3d 128, 135 (4th Cir. 2001); Townsel v. Missouri, 233 F.3d 1094, 1095-96 (8th Cir. 2000); Chittister v. Dep't of Community and Economic Development, 226 F.3d 223, 228-29 (3d Cir. 2000); Sims v. University of Cincinnati, 219 F.3d 559, 566 (6th Cir. 2000); Hale v. Mann, 219 F.3d 61, 69 (2d Cir. 2000); Kazmier v. Widmann, 225 F.3d 519, 526-27 (5th Cir. 2000); contra, Hibbs v. Dep't of Human Resources, 273 F.3d 844, 858 (9th Cir. 2001) (Congress validly abrogated the states' sovereign immunity under Section 5 of the Fourteenth Amendment because of gender discrimination), cert. granted, 122 S.Ct. 2618 (2002). This court believes that the Seventh Circuit would follow the majority of the courts, holding that Congress did not validly abrogate the states' sovereign immunity under the Eleventh Amendment. Accordingly, even if she were deemed a covered employee, O'Reilly's claim under the FMLA must be dismissed on the merits for failure to state a claim upon which relief can be granted.
B. Section 1983
Finally, Kazjer and the judges argue that the constitutional claims brought against them in their official capacities pursuant to Section 1983 are improper because they are not "persons" within the meaning of that statute. If the judges and Kazjer were acting as state officials when they fired O'Reilly, then, under Will v. Michigan Dep't of State Police, they were not "persons" capable of being sued under Section 1983 to the extent that O'Reilly seeks money damages. 491 U.S. 58 (1989). While this is a correct recitation of the law, this argument overlooks the fact that O'Reilly sued Kazjer and the judges in their individual capacities. See Am. Cplt. ¶¶ 58-60. As a result, the defendants' motion to dismiss Count 5 for failure to state a claim upon which relief can be granted must be denied. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985).
Furthermore, Kazjer admits in his motion that the Section 1983 claim against him in his individual capacity survives the motion to dismiss. See Kazjer Motion to Dismiss (adopting pending motion to dismiss filed by Montgomery County); Def. Reply Br. at 10 (Section 1983 claim is only claim that would survive motion to dismiss).
Conclusion
For the reasons stated above, the court grants defendants' motions to dismiss the complaint on all claims except plaintiff's claims under Section 1983 against Kazjer, Judge Kirtley, Judge Milligan, and Judge Ault in their individual capacities.So ordered.