Evers-Romero v. Commonwealth of Pennsylvania et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and pursuant to Rule 12

E.D. Pa.November 23, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA LISA EVERS-ROMERO : : Plaintiff, : v. : CIVIL ACTION NO. 16-cv-6155 COMMONWEALTH OF : PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF CORRECTIONS- STATE CORRECTIONAL INSTITUION- : GRATERFORD : Defendant ORDER AND NOW, this day of , 2016, upon consideration of the motion of the defendant Commonwealth of Pennsylvania, Pennsylvania Department of Corrections-State Correctional Institution-Graterford to dismiss the complaint, it is hereby ORDERED that the motion is GRANTED. If plaintiff can file an amended complaint pursuant to Fed.R.Civ.P. 11, she shall do so within thirty (30) days and the defendant shall then respond to the amended complaint within thirty (30) days thereafter. BY THE COURT: WENDY BEETLESTONE, J. Case 2:16-cv-06155-WB Document 3 Filed 11/23/16 Page 1 of 12 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA LISA EVERS-ROMERO : : Plaintiff, : v. : CIVIL ACTION NO. 16-cv-6155 COMMONWEALTH OF : PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF CORRECTIONS- STATE CORRECTIONAL INSTITUION- : GRATERFORD : Defendant MOTION TO DISMISS THE COMPLAINT Defendant Commonwealth of Pennsylvania, Pennsylvania Department of Corrections- State Correctional Institution-Graterford moves to dismiss plaintiff’s complaint, pursuant to Fed.R.Civ.P. 12(b) (1) and (6), and incorporates by reference the attached incorporated memorandum of law. Wherefore, this Court should grant the relief as set forth in the proposed order. Respectfully submitted, BRUCE R. BEEMER Attorney General /s/ Sue Ann Unger Sue Ann Unger Office of Attorney General Senior Deputy Attorney General 21 S. 12th Street, 3rd Floor Attorney I.D. No. 39009 Philadelphia, PA 19107 Kenneth Joel 215-560-2127; fx: 717-772-4526 Chief Deputy Attorney General Case 2:16-cv-06155-WB Document 3 Filed 11/23/16 Page 2 of 12 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA LISA EVERS-ROMERO : : Plaintiff, : v. : CIVIL ACTION NO. 16-cv-6155 COMMONWEALTH OF : PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF CORRECTIONS- STATE CORRECTIONAL INSTITUION- : GRATERFORD : Defendant MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS THE COMPLAINT I. PROCEDURAL HISTORY Plaintiff Lisa Evers-Romero initiated this action in the Court of Common Pleas of Montgomery County, Pennsylvania against her current employer, the Commonwealth of Pennsylvania, Pennsylvania Department of Corrections-State Correctional Institution-Graterford. Her Count I asserts violations of the Americans with Disabilities Act, as amended (ADA), 42 U.S.C. § 12101 et seq.-actual/ perceived/ record of disability discrimination, retaliation and failure to accommodate. Her Count II asserts a retaliation claim under the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-2654. Plaintiff requests compensatory and punitive damages. Defendant removed the case to this Court and now moves to dismiss. II. FACTS ALLEGED Plaintiff is a correctional officer 1, employed by the Commonwealth of Pennsylvania, Pennsylvania Department of Corrections, State Correctional Institution (misspelled “Instituion” Case 2:16-cv-06155-WB Document 3 Filed 11/23/16 Page 3 of 12 2 in the complaint)- Graterford (“SCI-Graterford”), from 2000 until her termination on November 19, 2015. Complaint ¶¶ 6, 9, 22-23. She grieved the termination and was reinstated. Id. ¶ 26. Plaintiff had a work-related injury to her ankle to 2008, took time off from work for surgeries, and returned to light-duty work in October of 2013. Id. ¶¶ 10-13. In June of 2014, she was removed from light-duty work and placed on an involuntary leave and then returned to light-duty work in July of 2015. Id. ¶¶ 13, 16. SCI-Graterford learned that plaintiff’s Heart and Lung Benefits were terminated. Id. ¶¶ 16-17. On October 6, 2015, SCI-Graterford’s Human Resources Director informed her, on October 21, 2015, not to report back to work on her next scheduled workday, October 27, 2015. Ibid. On October 26, 2015, plaintiff was released to return to work full-duty with no restrictions. The next day, October 27, 2015, SCI-Graterford gave her three choices-resign, retire, or apply for other Commonwealth employment. Id. ¶ 18. She was terminated because she was unable to return to work full-duty before her Heart and Lung Benefits had been terminated. Id. ¶ 23. SCI-Graterford did not permit her to return to work, and then her termination took effect in November, 2015. Id. ¶21. Plaintiff claims that SCI-Graterford should have accommodated her by allowing her to continue light-duty work until she was able to work full-duty. ¶ 21. III. ARGUMENT A. Applicable Standards To determine the sufficiency of a complaint, courts first note the elements a plaintiff must plead to state a claim. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011), cert. den’d, 132 S.Ct. 1861 (2012). Courts then identify “allegations that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id.; see e.g. James v. City of Wilkes-Barre, No. 11-3345, 700 F.3d 675 (3d Cir. 2012) (reversing a denial of a motion to Case 2:16-cv-06155-WB Document 3 Filed 11/23/16 Page 4 of 12 3 dismiss where district court erroneously presumed the truth of a “legal conclusion artfully pleaded as a factual assertion.”). Finally, courts assume the veracity of well-pled factual allegations, and then determine whether they plausibly give rise to an entitlement to relief. Burtch, 662 F.3d 212. A Rule 12(b) (1) motion is the proper way to raise the issue of Eleventh Amendment immunity. Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 694 n. 2 (3d Cir.1996). Eleventh Amendment issues should be disposed of at the motion-to-dismiss stage. See Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249 (3d Cir. 2010). Courts consider 12(b)(1) challenges before Rule 12(b)(6) challenges, because a dismissal for lack of subject matter jurisdiction moots other defenses and objections. Tolan v. U.S., 176 F.R.D. 507, 509 (E.D. Pa. 1998) (citing cases). In Lombardo v. Pennsylvania, Dept. of Publ. Welf , 540 F.3d 190 (3d Cir. 2008), the Third Circuit held that there are two aspects to sovereign immunity. The first aspect is subject-matter jurisdiction. That is waived when a case is removed. The second aspect is immunity from liability, which is not waived, and is determined by state law. Thus defendant’s removal of plaintiff’s complaint only bars the defendant from asserting the aspect of sovereign immunity regarding jurisdiction. The removal has no effect on the determination of immunity from liability. To survive a 12(b)(6) motion, a complaint must contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 662 F.3d. at 221. Where “the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]’-‘that the pleader is entitled to relief.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009) (quoting Fed.R.Civ.P. 8(a)(2)); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558-559 (2007). A Case 2:16-cv-06155-WB Document 3 Filed 11/23/16 Page 5 of 12 4 complaint that does not “show” entitlement to relief must be dismissed. Id. The claim must thus have “facial plausibility.” Argueta v. U.S. Immigration and Customs Enf., 643 F.3d 60, 72-73 (3d Cir. 2011). “This ‘plausibility’ standard does not require probability, but it does demand more than a sheer possibility that the defendant acted unlawfully. Therefore, a complaint pleading facts that are merely consistent with liability is insufficient.” Id. B. The Eleventh Amendment Bars the ADA Claims. State agencies, such as the Department of Corrections and SCI-Graterford, enjoy the same level of immunity as the state. Scantling v. Vaughn, No. 03-CV-0067, 2004 WL 306126, at *10 (E.D. Pa. Feb. 12, 2004) (citing Cloverland-Green Spring Dairies, Inc. v. Pennsylvania Milk Mktg. Bd., 298 F.3d 201, 205 n. 2 (3d Cir.2002)). The defendant is thus immune from liability from plaintiff’s ADA claims by virtue of the Eleventh Amendment. In 2001, the U.S. Supreme Court held that Congress did not validly abrogate the states' sovereign immunity from suit by private individuals for money damages under Title I of the ADA, and that such suits are barred under the Eleventh Amendment. Board of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 360, 363, 374 (2001). In Banks v. Court of Common Pleas FJD, No. 09-1145, 342 Fed.Appx. 818, 2009 WL 2488941 (3d Cir. Aug. 17, 2009), the Third Circuit explained that “suits seeking money damages against the state [or its instrumentalities] for an alleged failure to comply with Title I of the ADA are barred by the Eleventh Amendment.” 342 Fed.Appx. at 820-21 (citing Garrett, 531 U.S. 356 (2001). Thus, “Pennsylvania, if sued under Title I [of the ADA], retains its Eleventh Amendment immunity.” Benn v. First Judicial District of Pa., 426 F.3d 233, 239 (3d Cir. 2005), e.g. McGriff v. Pennsylvania, No. 12cv2967, 2012 WL 2005558, (E.D.Pa. Jun. 5, 2012). Case 2:16-cv-06155-WB Document 3 Filed 11/23/16 Page 6 of 12 5 The Eleventh Amendment bars all of plaintiff’s ADA claims, including the retaliation claim, because the claims are all employment-related. ADA employment claims are pursued exclusively through Title I of the statute. Koslow v. Pennsylvania, 158 F.Supp.2d 539, 542 (E.D.Pa.2001) (Congress intended Title I to be the sole avenue for pursuing employment discrimination claims based on disability”), aff'd in part, rev'd on other grounds, 302 F.3d 161 (3d Cir.2002); Hemby-Grubb v. Indiana Univ. of Pa., No. 06-1307, 2008 WL 4372937, at * 6 (W.D. Pa. Sep. 22, 2008). Courts within the Third Circuit that have considered retaliation claims against a state have concluded that the Eleventh amendment forecloses those claims. Wong v. NJ Dep't of Children & Families, No. 12-CV-5915 FSH, 2013 WL 5503301, at *3 (D.N.J. Oct. 1, 2013)( (finding that Title V claims were barred by the Eleventh Amendment)); Magargal v. New Jersey, No. CIV.A. 07-3531 MAS T, 2013 WL 1792517, at *2-3 (D.N.J. Apr. 26, 2013) (same); Sweet- Springs v. Dep't of Children & Families, Civ. No. 12-706, 2013 WL 3043644, at *6 n. 9 (D.N.J. Jun. 17, 2013) (same); Hughes v. State of New Jersey, Office of Pub. Defender/Dep't of Pub. Advocate, No. 11-CV-01442, 2012 WL 761997, at *4 (D.N.J. Mar.7, 2012) (same); Foster v. New Jersey Dep't of Transp., Civ. No. 04-01, 2005 WL 3542462, at *5 n. 7 (D.N.J. Dec. 27, 2005) (noting that both Title I and Title V claims under the ADA are barred by the Eleventh Amendment) aff'd, 255 F. App'x 670 (3d Cir. 2007). Similarly, appellate courts that “have analyzed Title V in the context of the Eleventh Amendment . . . found that sovereign immunity attached to Title V at least when the Title V claims were predicated on alleged violations of Title I.” Wong v. NJ Dep't of Children & Fam., 2013 WL 5503301, at *3 (citing Lors v. Dean, 746 F.3d 857, 863-64 (8th Cir.2014); Demshki v. Monteith, 255 F.3d 986, 988 (9th Cir.2001); Kramer v. Banc of America Securities, LLC, 355 Case 2:16-cv-06155-WB Document 3 Filed 11/23/16 Page 7 of 12 6 F.3d 961 (7th Cir.), cert. den’d, 542 U.S. 932 (2004) ((“[T]he 1991 Civil Rights Act does not expand the remedies available to a party bringing an ADA retaliation claim against an employer and therefore compensatory and punitive damages are not available”). Other circuit court cases decided since Wong reach the same conclusion. Dottin v. Texas Dep't of Criminal Justice, 627 F. App'x 397, 398 (5th Cir. 2015) (Title V itself does not abrogate a state's sovereign immunity); Levy v. Kansas Dep't of Soc. & Rehab. Servs., 789 F.3d 1164 (10th Cir. 2015). On an interlocutory appeal the Third Circuit concluded that, while voluntary removal waives a State’s immunity from suit in a federal forum, the removing State retains all defenses it would have enjoyed had the matter been litigated in state court, including immunity from liability on a federal claim. Lombardo, 540 F.3d at 198. As alluded to previously, the Circuit observed that State sovereign immunity is not a unitary concept. Lombardo, 540 F. 3d at 194. Relying on Supreme Court precedent, the Third Circuit delineated two distinct types of state sovereign immunity: immunity from suit in federal court and immunity from liability. Id. In other words, state sovereign immunity comprises more than just immunity from suit in federal court; it also includes a state's immunity from liability. Id. at 194-95. Courts look to state law to determine if the Commonwealth maintains a separate immunity from liability. Lombardo, at 195. A State may establish its own immunity against liability that is distinct from the Eleventh Amendment immunity from suit enjoyed by all the States. Id. In Lombardo, the Court observed that under Pennsylvania law, the Commonwealth enjoys sovereign immunity unless the General Assembly “specifically waives sovereign immunity.” Id. See 1 Pa. C.S. § 2310.1 The exceptions to sovereign liability are certain 1 Title 1 Pa. C.S. § 2310 provides in relevant part: “Pursuant to section 11 of Article 1 of the Constitution of Pennsylvania, it is hereby declared to be the intent of the General Assembly that the Commonwealth, and its officials and employees acting within the scope of their duties, shall continue to enjoy sovereign immunity and Case 2:16-cv-06155-WB Document 3 Filed 11/23/16 Page 8 of 12 7 specifically enumerated tort claims for damages in state court. 42 Pa. C.S. § 8522 (b). The Pennsylvania General Assembly has not waived immunity for ADA violations; nor are such violations included in the statutory exceptions to sovereign immunity. See 42 Pa. C.S. § 8522 (b) (listing “acts by a Commonwealth party” that “may result in the imposition of liability on the Commonwealth” for which “the defense of sovereign immunity shall not be raised to claims for damages”); Lombardo, 540 F. 3d at 195 (state assembly has not waived immunity for violations under the ADEA); see also Chittister v. Dep't of Cmty. & Econ. Dev., 226 F.3d 223, 227 (3d Cir. 2000) (acknowledging that, with the exception of the tort claims for damages in state court listed in § 8522, “the Commonwealth's immunity is otherwise intact”); district Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981). Section 2310 immunizes the Commonwealth and its agencies. Laskaris, 661 F.2d at 25; see Johnson v. Commonwealth of Pa. DOC, No. 92cv5149, 1992 WL 392601, at *1 (E.D. Pa. Dec. 18, 1992); see also Frazier v. SEPTA, 868 F.Supp. 757 (E.D.Pa. 1994) (state agency enjoys sovereign immunity from claims for damages for intentional and negligent torts). “[T]he PHRA waives Pennsylvania's immunity from actions brought in Pennsylvania courts.” Mitchell v. Miller, No. 10-129J, 2012 WL 3204476, 32 (W.D.Pa. Aug. 3, 2012); 43 Pa. Stat. § 954(b). There is no such waiver for the ADA. The defendant is thus immune from liability for damages from plaintiff’s ADA claims by virtue of the Eleventh Amendment. Plaintiff has been reinstated and thus cannot reasonably request injunctive relief. Accordingly, all plaintiff's ADA claims must is dismissed with prejudice. official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity.” Case 2:16-cv-06155-WB Document 3 Filed 11/23/16 Page 9 of 12 8 C. The Eleventh Amendment Bars the Family Medical Leave Act Retaliation Claim. “Private suits for damages may not be brought against states for alleged violations of the FMLA, which arise under the Act's self-care provision.” Banks v. Court of Common Pleas FJD, 342 F. App'x. 818, 821 (3d Cir.2009); Coleman v. Court of Appeals of Md., 132 S.Ct. 1327, 1338 (2012) (holding that Congress did not abrogate Eleventh Amendment immunity with respect to claims alleged against states pursuant to the FMLA self-care provision). The reasoning of Coleman applies to retaliation claims under the FMLA as well. Amoroso v. Bucks Cty. Ct. of Com. Pl., No.13-CV-0689, 2014 WL 3767000, at *3-4 (E.D. Pa. Jul. 31, 2014) (citing Howard v. Pennsylvania Dep't of Pub. Wlf., No. 11-1938, 2013 WL 102662 (E.D.Pa. Jan.9, 2013) (applying Coleman on both FMLA interference and retaliation claims pursuant to the FMLA self-care provision); Folk v. Pennsylvania Dep't of Educ., No. 10-CV-7377, 2012 WL 2282849 (E.D.Pa. Jun. 14, 2012) (same). D. Plaintiff Failed To Exhaust Her Administrative Remedies. The ADA requires pursuit of administrative remedies before a plaintiff may file a complaint in court. Churchill v. Star Enterprises, 183 F.3d 184, 190 (3d Cir.1999). “Relief in federal courts [for ADA claims] is available only to those plaintiffs who have exhausted administrative remedies with the Equal Employment Opportunity Commission (“EEOC”).” Meggiolaro v. Lagniappe Pharmacy Servs., Transaction Data Sys., Inc., No. 2:16-CV-3407 (WJM), 2016 WL 5660432, at *1 (D.N.J. Sep. 29, 2016) (citing Itiowe v. NBC Universal Inc., 556 Fed. Appx. 126, 128 (3d Cir. 2014). “Failure to exhaust administrative remedies, while not a bar to federal jurisdiction, ‘constitutes a ground for dismissal for failure to state a claim.’” Meggiolaro (citing Anjelino v. New York Times Co., 200 F.3d 73, 87 (3d Cir. 2000)). Therefore the ADA claim also fails pursuant to Fed.R.Civ.P. 12(b)(6). Case 2:16-cv-06155-WB Document 3 Filed 11/23/16 Page 10 of 12 9 IV. CONCLUSION This Court should dismiss the claims without prejudice to allow plaintiff to attempt to amend them if she can do so pursuant to Fed.R.Civ.P. 11. Respectfully submitted, BRUCE R. BEEMER Attorney General /s/ Sue Ann Unger Sue Ann Unger Office of Attorney General Senior Deputy Attorney General 21 S. 12th Street, 3rd Floor Attorney I.D. No. 39009 Philadelphia, PA 19107 Kenneth Joel 215-560-2127; fx: 717-772-4526 Chief Deputy Attorney General Case 2:16-cv-06155-WB Document 3 Filed 11/23/16 Page 11 of 12 CERTIFICATE OF SERVICE I, Sue Ann Unger, hereby certify that the defendants’ attached document has been filed electronically on November , 2016, and is available for viewing and downloading from the Court’s Electronic Case Filing System. Plaintiffs’ counsel below is on the Court’s electronic email notice list. Plaintiff has thus been served. Ari R. Karpf, Esq. Timothy S. Seiler Esq. 331 Street Rd., Bldg. 2, Ste. 128 Bensalem, PA 19020. /s/ Sue Ann Unger Sue Ann Unger Office of Attorney General Senior Deputy Attorney General 21 S. 12th Street, 3rd Floor Attorney I.D. No. 39009 Philadelphia, PA 19107 215-560-2127; fx: 717-772-4526 Case 2:16-cv-06155-WB Document 3 Filed 11/23/16 Page 12 of 12