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Gesinger v. Sebelius

United States District Court, D. South Dakota, Northern Division

February 25, 2014

RUTH A. GESINGER, Plaintiff,
HONORABLE KATHLEEN SEBELIUS, Secretary of Department of Health and Human Services, in her official capacity, Defendant.


CHARLES B. KORNMANN, District Judge.


Plaintiff was employed as a nurse at Indian Health Services in Eagle Butte, South Dakota. She was fired on April 1, 2011. She filed a complaint with the Equal Employment Opportunity Commission ("EEOC") claiming she was disabled as a result of bi-polar disorder, anxiety, and depression and was fired as a result of her disability. On September 21, 2012, an administrative law judge for the EEOC determined that plaintiff had established disability discrimination in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. The EEOC ordered the agency to, within 30 days, offer to reinstate plaintiff to her former position, amend her employment record, pay, within 60 days of the EEOC decision becoming final, back pay with interest, and pay $10, 000 in non-pecuniary damages for her significant mental distress. On October 31, 2012, the defendant agency notified plaintiff that it would fully comply with the order of the All. Plaintiff filed the complaint herein on January 29, 2013, alleging that defendant discriminated against her in violation of the Americans with Disabilities Act ("ADA") when she was terminated and when defendant failed to comply with the order of the ALJ.

Defendant moved to dismiss on the basis that there is no cause of action against a federal employer under the ADA. In response, plaintiff, through new counsel, filed a motion to amend the complaint to assert claims under the Rehabilitation Act of 1973. Plaintiff claims the defendant discriminated against her because of her disability, failed to fully comply with the order of the EEOC, failed to accommodate her disability upon reinstatement, and constructively discharged her by its continued discriminatory conduct. Defendant resists the motion to amend on the basis that plaintiff has failed to exhaust administrative remedies under the Rehabilitation Act and failed to comply with D.S.D. LR 15.1. Plaintiff subsequently complied with the Local Rule requiring a highlighted amended complaint.


I. Subject Matter Jurisdiction.

"Federal courts are not courts of general jurisdiction and have only the power that is authorized by Article III of the Constitution and statutes enacted by Congress pursuant thereto." Marine Equipment Management Co. v. U.S. , 4 F.3d 643, 646 (8th Cir. 1993), citing Bender v. Williams-Port Area School Dist. , 475 U.S. 534, 541, reh'g denied 476 U.S. 1132 (1986), citing in turn Marbury v. Madison , 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). "The threshold inquiry in every federal case is whether the court has jurisdiction" and the Eighth Circuit has "admonished district judges to be attentive to a satisfaction of jurisdictional requirements in all cases." Rock Island Millwork Co. v. Hedges-Gough Lumber Co. , 337 F.2d 24, 26-27 (8th Cir. 1964), and Sanders v. Clemco Industries , 823 F.2d 214, 216 (8th Cir. 1987).

"The burden of establishing that a cause of action lies within the limited jurisdiction of the federal courts is on the party asserting jurisdiction." Arkansas Blue Cross and Blue Shield v. Little Rock Cardiology Clinic, P.A. , 551 F.3d 812, 816 (8th Cir. 2009). In this case, the plaintiff has the burden of establishing that jurisdiction exists. It is not the responsibility of defendant to prove otherwise. Titus v. Sullivan , 4 F.3d 590, 593 n.1. (8th Cir. 1993).

Defendant moved to dismiss under Fed.R.Civ.P. 12(b)(1) for lack of jurisdiction and under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. Where, as here, the defendant moved for dismissal under Rule 12(b)(1), as well as on other grounds, "the court should consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined." 5 C. Wright and A. Miller, Federal Practice and Procedure, § 1350, p. 548 (1969). cf. Bell v. Hood , 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946) (motion to dismiss for failure to state a claim may be decided only after finding subject matter jurisdiction).

Plaintiff's original complaint avers that jurisdiction is proper under the ADA, 42 U.S.C. § 2000e-5(f)(3). She claims defendant discriminated against her because of her disability by its actions up to and including her termination on April 1, 2011, and by failing to timely follow the order of the All for reinstatement and amendment of her employment record. She sought compensatory damages, punitive damages, attorney fees and costs, and both pre- and post-judgment interest.

"Sovereign immunity is jurisdictional in nature." F.D.I.C. v. Meyer , 510 U.S. 471, 475, 114 S.Ct. 996, 1000, 127 L.Wd.2d 308 (1994). To sue the United States or an agency of the United States, plaintiff must "show both waiver of sovereign immunity and a grant of subject matter jurisdiction." V S Ltd. Partnership v. Department of Housing and Urban Development , 235 F.3d 1109, 1112 (8th Cir. 2000). The ADA makes it unlawful for a covered employer to discriminate against any "qualified individual on the basis of disability." 42 U.S.C. § 12112(a). The United States is not a covered employer under the ADA. 42 U.S.C. § 12111(5)(B)(I) ("the term employer' does not include the United States [or] a corporation wholly owned by the government of the United States..."). The United States has not waived its sovereign immunity under the ADA. This Court lacks subject matter jurisdiction over the original complaint.

Plaintiff contends that, despite her complaint's jurisdictional statement citation to the ADA, she attached the All opinion wherein the ALJ specifically stated her claims were proper under the Rehabilitation Act. She asserts this attachment cures any jurisdictional defect. However, plaintiff's attachment of the ALJ's decision with its reference to the Rehabilitation Act clearly shows that proceeding under the ADA was not inadvertent.

The ADA and the Rehabilitation Act both prohibit discrimination against the disabled. See 42 U.S.C. § 12112(a) and 29 U.S.C. § 794(a). Both Acts are enforceable through private causes of action. Barnes v. Gorman , 536 U.S. 181, 184-85, 122 S.Ct. 2097, 2100 (2002).

For a prima facie § 504 violation, a qualified individual with a disability must be denied, on the basis of the individual's disability, the benefits of a program or activity of a public entity receiving federal funds. MP. ex rel. K & D.P. v. Indep. Sch. Dist. No. 721, 326 F.3d 975, 981-82 (8th Cir. 2003). For a prima facie Title II ADA violation, a qualified individual with a disability must be excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or be otherwise discriminated against by the entity, by reason of the individual's disability. Layton v. Elder, 143 F.3d 469, 472 (8th Cir. 1998). "The ADA and § 504 of the Rehabilitation Act are similar in substance' and, with the exception of the Rehabilitation Act's federal funding requirement, cases ...

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