Thomas v. Tenn. Dep't of Human Servs.

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AMANDA THOMAS, Plaintiff, v. TENNESSEE DEP'T OF HUMAN SERVICES, Defendant.

No. 3:21-cv-00426

United States District Court, M.D. Tennessee, Nashville Division

June 23, 2022

MEMORANDUM OPINION

ELI RICHARDSON UNITED STATES DISTRICT JUDGE

Pending before the Court is Defendant's Motion to Dismiss (Doc No. 9, “Motion”), supported by an accompanying Memorandum of Law. (Doc. No. 10).^[1] Plaintiff filed a response (Doc. No. 16, “Response”), and Defendant filed a reply (Doc. No. 20, “Reply”). For the reasons stated herein, Defendant's Motion will be GRANTED in part and DENIED in part.

FACTUAL ALLEGATIONS^[2]

Plaintiff Amanda Thomas, is a resident of Columbia, Tennessee. (Doc No. 1 at 1). She has a master's degree in Rehabilitation Counseling from the University of Tennessee and is employed as a Masters Vocational Rehabilitation Counselor (“VRC”) within the Rehabilitation Services Division of the Tennessee Department of Human Services (“DHS”). (Id.). She has been a VRC for eight years, where her job is to assist individuals with disabilities to gain and maintain employment. (Id. at 2). Plaintiff's responsibilities include intake, preparing work plans, coordinating service delivery, and processing cases. (Id.).

Plaintiff suffers from chronic back pain as a result of a bulging disk in her lumbar spine. (Id. at 3). This pain progressively worsened through early 2019 and was further worsened by driving and carrying work materials to various workstations. (Id.). During the early summer of 2019, Plaintiff was based in Maury County, Tennessee, but was responsible for providing services to three counties: Maury, Hickman, and Perry. (Id.). In June 2019, she informed her supervisors of her back pain and told them that driving made it worse. (Id.).

On June 24, 2019, Plaintiff requested leave under the Family and Medical Leave Act (“FMLA”) so she could have a lumbar discectomy. (Id.). The request noted that her recovery time would be between six to twelve weeks and that she could experience flare-ups for up to six months. (Id.). The request also contained a recommendation from Plaintiff's physician that she be able to work from home as needed. (Id.). Plaintiff underwent the surgery on July 9, 2019 and returned to the office on July 29, 2019. (Id. at 4). She requested to work from home the weeks of July 29, 2019 and August 5, 2019, but those requests were denied. (Id.).

On August 2, 2019, Plaintiff sent a request for accommodation to Malcom Richards, DHS's Americans with Disabilities Coordinator. (Id.). In that request, Plaintiff asked to work from home because she could not sit for extended periods of time. (Id.). Plaintiff did not receive an accommodation, nor was she contacted about her request. (Id.). She later followed up with Mr. Richards and her supervisors to no avail. (Id.). During this time, Plaintiff was asked to serve additional counties (which increased her driving time), and Plaintiff's administrative support staff was removed (which increased her workload). (Id.).

After four months of no response to her accommodation request, Plaintiff filed an EEOC complaint with the Tennessee Department of Human Resource (“DOHR”). (Id.). DOHR conducted an investigation and determined that Plaintiff's request was not processed in a timely manner and remained pending as of January 9, 2020. (Id. at 5). By March 23, 2020, DHS had still not provided Plaintiff with an accommodation, and had instead advised Plaintiff to use her 15-minute breaks to take rests during driving. (Id.). DHS also suggested Plaintiff flex her schedule to reduce driving days, which would have made it impossible for Plaintiff to meet DHS' policy of responding to client inquiries within 30 days and developing a plan of employment within 90 days of a client being certified as eligible. (Id.).

On March 23, 2020, DHS directed Plaintiff and most DHS employees to work from home because of the COVID-19 pandemic. (Id.). As of the filing of her Complaint, June 1, 2021, Plaintiff still worked from home and has never received a response to her accommodation request. (Id.). Plaintiff also notes that at some point “recently” to the filing of her Complaint, Plaintiff applied for and was turned down for a promotion that she “was better qualified” for than the person ultimately selected. (Id. at 6).

PROCEDURAL BACKGROUND

In June 2021, Plaintiff filed the Complaint in this action (Doc. No. 1), which alleges violations of the Rehabilitation Act because allegedly she was “subject to heightened scrutiny, retaliation, and denied other benefits and privileges because of her disability and/or request for accommodation.” (Id. at 6). Plaintiff also alleges violations of the Tennessee Human Rights Act (“THRA”), because allegedly she was “subject to heightened scrutiny, retaliation, denied a promotion, and denied other benefits and privileges because of her disability.”^[3] (Id. at 8). Via the Motion, Defendants seek dismissal of Plaintiff's THRA claims under 12(b)(1) for lack of subjectmatter jurisdiction and dismissal of her Rehabilitation Act failure to accommodate and retaliation claims under 12(b)(6) for failure to state a claim upon which relief can be granted. It does not appear to the Court that Defendant's Motion addressed Plaintiff's claim for general disability discrimination under the Rehabilitation Act.

STANDARD

I. Motion to Dismiss Based on Alleged Immunity

Defendant purports to bring a motion to dismiss for lack of subject-matter jurisdiction because of its alleged entitlement to what Defendant couches as Eleventh Amendment immunity.^[4]However, in substance, Defendant's argument on this point actually asserts sovereign immunity, which is different from Eleventh Amendment immunity. See WCI, Inc. v. Ohio Dep't of Pub. Safety, 18 F.4th 509 (6th Cir. 2021) (noting that Eleventh Amendment immunity is different from sovereign immunity). As the Sixth Circuit explained in WCI, Inc., such conflation of sovereign immunity and Eleventh Amendment immunity is commonplace (and thus forgivable):

The parties and the district court conflate the common-law doctrine of sovereign immunity with the immunity conferred by the Eleventh Amendment. And they are not the first: courts have often treated Eleventh Amendment immunity and sovereign immunity as interchangeable concepts. See, e.g., Lapides v. Bd. of Regents, 535 U.S. 613, 616, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002); Town of Smyrna v. Mun. Gas Auth. of Ga., 723 F.3d 640, 650 (6th Cir. 2013); but see Alden v. Maine, 527 U.S. 706, 713, 728-29, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) (locating the source of sovereign immunity outside the Eleventh Amendment). But as a matter of original meaning, the two are conceptually distinct.

Id. at 513. The Sixth Circuit went on to explain the distinction between the two and, in the process, indicated clearly how the distinction would be one with a difference in cases like the instant one:

The Eleventh Amendment removes from federal jurisdiction “any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State[.]” U.S. Const. amend. XI. The plain text of the amendment includes a diversity requirement and sounds in subject-matter jurisdiction. William Baude & Stephen E. Sachs, The Misunderstood Eleventh Amendment, 169 U. Pa. L. Rev.

609, 612 (2021) . . . State sovereign immunity, on the other hand, refers to a state's right “not to be amenable to the suit of an individual without its consent.” The Federalist No. 81, at 486 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (emphasis omitted).... It sounds in personal jurisdiction and may be waived by a state's conduct. Caleb Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction, 115 Harv. L. Rev. 1559, 1565-66 (2002). And unlike the Eleventh Amendment, it erects a jurisdictional bar in both state and federal courts and does not require diversity among the litigants. See Baude & Sachs, supra, at 614.

Id. at 513-14 (emphasis added). There is no diversity of parties in the present case, and therefore the Eleventh Amendment does not come into play. Rather, in substance Defendant actually is asserting a sovereign-immunity argument. This is reflected in Defendant's argument heading on this point, which reads, “The State's Sovereign Immunity Deprives this Court of Subject-Matter Jurisdiction Over Plaintiff's Tennessee Human Rights Act Claim,” and by the content of the argument, which raises concerns about Tennessee's consent to be sued. (Doc. No. 10 at 5) (emphasis added). However, contrary to the heading just quoted, a sovereign-immunity argument sounds in personal jurisdiction, WCI, Inc., 18 F.4th at 514, and therefore is appropriately brought under Fed.R.Civ.P. 12(b)(2). The Court thus will construe Defendant's motion brought purportedly under 12(b)(1), as if it was brought (appropriately) under 12(b)(2).^[5]

Ordinarily, with a Rule 12(b)(2) challenge to personal jurisdiction there are threshold considerations as to what evidence, if any, the Court may consider and what allegations, if any, the Court accepts as true in making its ruling.^[6] For reasons the Court need not dwell on herein, these rules do not seem applicable to the particular question of whether Defendant possesses sovereign immunity as to Plaintiff's THRA claims. The Court does not discern clear rules in the Sixth Circuit on this specific issue but suffice it to say there does not appear to be disputed evidence in the present case.

II. Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim

For purposes of a motion to dismiss brought under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must take all the factual allegations in the complaint as true, as it has done above. Ashcroft v. Iqbal, 556...