UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Anna Parsons
v. Case No. 23-cv-415-SM-TSM Opinion No. 2024 DNH 044 New Hampshire Department of Health and Human Services, Division for Children, Youth and Families
O R D E R
Anna Parsons brings suit against her former employer, the
New Hampshire Department of Health and Human Services, Division
for Children, Youth and Families (“DHHS”), asserting a violation
of Title I of the Americans with Disabilities Act (“ADA”) and a
state law claim for wrongful termination. DHHS has moved to
dismiss Parson’s claims, invoking sovereign immunity under the
Eleventh Amendment. Parsons objects.
Standard of Review
As DHHS acknowledges, neither the Supreme Court nor the
First Circuit Court of Appeals has decided, definitively,
whether Federal Rule of Civil Procedure 12(b)(1) or 12(b)(6)
applies to a motion to dismiss based on sovereign immunity
(which is a challenge to the court’s subject matter
jurisdiction). See, e.g., Clemente Props., Inc. v. Pierluisi
Urrutia, --- F. Supp. 3d ---, 2023 WL 6201397, at *6 (D.P.R.
Sept. 22, 2023). DHHS further contends that the court need not
1 decide the issue here, where the facts are not disputed for
purposes of sovereign immunity. See Ramos-Pinero v. Puerto
Rico, 453 F.3d 48, 51 (1st Cir. 2006); Valentin v. Hospital
Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001). When the
jurisdictional facts are undisputed, the court accepts all well-
pleaded facts alleged in the complaint as true, disregarding
legal labels and conclusions, and resolving reasonable
inferences in the plaintiff's favor. Ramos-Pinero, 453 F.3d at
51 (addressing a motion to dismiss based on sovereign immunity
under both Rules 12(b)(1) and 12(b)(6)).
Background
In the amended complaint, Anna Parsons alleges that she has
been diagnosed with attention deficit hyperactivity disorder,
major depressive disorder, and anxiety disorder, which impact
her ability to focus, stay on task, process information, and
complete tasks as expeditiously as a person who does not have
those conditions. Parsons began working for DHHS in August of
2019 as a Child Protective Service Worker I, investigating abuse
and neglect claims against children, creating safety and care
plans, and performing risk assessments for families in need of
DHHS services. Parsons requested and was granted certain
accommodations for her stated disabilities.
2 Due to the COVID-19 pandemic, all DHHS employees began
working remotely in March of 2020. During that time, Parsons
requested scheduling accommodations, but her supervisors
responded that she was not trying or working hard enough.
Despite those issues, in August of 2020, Parsons received a
satisfactory performance review.
The next day, on August 21, 2020, Anna spoke with Human
Resources regarding the Family Medical Leave Act, as well as
accommodations for her disability. She continued to have
difficulties with productivity and received criticism and
additional attention from supervisors. On January 26, 2021,
Parsons took FMLA leave. When she returned from leave in mid-
March 2021, she was demoted to “case aid status,” which meant
she could not do assessments and could only assist in
investigations. Parsons resigned from her position with DHHS on
May 20, 2021.
On September 16, 2021, Parsons filed a charge of
discrimination with the New Hampshire Commission for Human
Rights (“NHCHR”) and the Equal Employment Opportunity Commission
(“EEOC”). In her amended complaint, Parsons states that her
charge of discrimination before the NHCHR “alleged violations of
the ADA, alleging failure to accommodate disability,
retaliation, and wrongful discharge.” Doc. no. 7, at 2 ¶ 11.
DHHS was ordered to respond and participated in the
3 investigation of Parson’s charges in that proceeding. Based on
its investigation, the NHCHR/EEOC found no probable cause to
support the claims and issued a right to sue letter.
After receiving the right to sue letter, Parsons filed this
action. She alleged four claims under Title I of the ADA (42
U.S.C. § 12101, et seq.) and Section 504 of the Rehabilitation
Act (29 U.S.C. § 794) (Counts I through IV) and one wrongful
discharge claim under state law (Count V). After DHHS moved to
dismiss, Parsons voluntarily dismissed her state law wrongful
discharge claim, Count V, leaving four claims under the ADA and
Section 504 of the Rehabilitation Act.
Discussion
DHHS moves to dismiss Parsons’s claims under the ADA in
Counts I through IV based on Eleventh Amendment sovereign
immunity. See Bd. of Trs. of Univ. of Ala. V. Garrett, 531 U.S.
356, 374 (2001) (invalidating Congress’s abrogation of sovereign
immunity for purposes of Title I of the ADA); accord Tennessee
v. Lane, 541 U.S. 509, 514 (2004); Torres-Alamo v. Puerto Rico,
502 F.3d 20, 24 (1st Cir. 2007). In her objection to the
motion, Parsons does not dispute that sovereign immunity applies
to Title I ADA claims under Garrett but argues that DHHS waived
sovereign immunity by participating in the NHCHR/EEOC
investigation of her charges without asserting sovereign
4 immunity and that, under Garrett, sovereign immunity does not
bar her equitable claims against DHHS. DHHS responds that
participation in the NHCHR/EEOC investigation did not waive
sovereign immunity and that the exception to sovereign immunity
recognized in Garrett for equitable claims applies only to
claims brought against state officials, not to claims against a
state agency such as DHHS.
DHHS did not move to dismiss Parsons’s claims under Section
504 of the Rehabilitation Act in Counts I through IV. For that
reason, the court does not address the Rehabilitation Act
claims, which survive DHHS’s motion to dismiss.
A. Waiver of Sovereign Immunity by Litigation Conduct
A state may waive the protection of sovereign immunity in
federal court through its litigation conduct when the state
voluntarily invokes federal court jurisdiction. Lapides v. Bd.
of Regents of Univ. Sys. of Ga., 535 U.S. 613, 619-622 (2002).
To be an effective waiver however, the state’s conduct “must be
‘unambiguous’ and ‘evince a clear choice to submit its rights to
adjudication by the federal courts.’” Consejo de Salud de la
Comunidad de la Playa de Ponce, Inc. v. Gonzalez-Feliciano, 695
F.3d 83, 104 (1st Cir. 2012) (cleaned up) (quoting Ramos–Piñero
v. Puerto Rico, 453 F.3d 48, 52 (1st Cir. 2006)). In
determining whether a waiver has occurred, the court’s focus is
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UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Anna Parsons
v. Case No. 23-cv-415-SM-TSM Opinion No. 2024 DNH 044 New Hampshire Department of Health and Human Services, Division for Children, Youth and Families
O R D E R
Anna Parsons brings suit against her former employer, the
New Hampshire Department of Health and Human Services, Division
for Children, Youth and Families (“DHHS”), asserting a violation
of Title I of the Americans with Disabilities Act (“ADA”) and a
state law claim for wrongful termination. DHHS has moved to
dismiss Parson’s claims, invoking sovereign immunity under the
Eleventh Amendment. Parsons objects.
Standard of Review
As DHHS acknowledges, neither the Supreme Court nor the
First Circuit Court of Appeals has decided, definitively,
whether Federal Rule of Civil Procedure 12(b)(1) or 12(b)(6)
applies to a motion to dismiss based on sovereign immunity
(which is a challenge to the court’s subject matter
jurisdiction). See, e.g., Clemente Props., Inc. v. Pierluisi
Urrutia, --- F. Supp. 3d ---, 2023 WL 6201397, at *6 (D.P.R.
Sept. 22, 2023). DHHS further contends that the court need not
1 decide the issue here, where the facts are not disputed for
purposes of sovereign immunity. See Ramos-Pinero v. Puerto
Rico, 453 F.3d 48, 51 (1st Cir. 2006); Valentin v. Hospital
Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001). When the
jurisdictional facts are undisputed, the court accepts all well-
pleaded facts alleged in the complaint as true, disregarding
legal labels and conclusions, and resolving reasonable
inferences in the plaintiff's favor. Ramos-Pinero, 453 F.3d at
51 (addressing a motion to dismiss based on sovereign immunity
under both Rules 12(b)(1) and 12(b)(6)).
Background
In the amended complaint, Anna Parsons alleges that she has
been diagnosed with attention deficit hyperactivity disorder,
major depressive disorder, and anxiety disorder, which impact
her ability to focus, stay on task, process information, and
complete tasks as expeditiously as a person who does not have
those conditions. Parsons began working for DHHS in August of
2019 as a Child Protective Service Worker I, investigating abuse
and neglect claims against children, creating safety and care
plans, and performing risk assessments for families in need of
DHHS services. Parsons requested and was granted certain
accommodations for her stated disabilities.
2 Due to the COVID-19 pandemic, all DHHS employees began
working remotely in March of 2020. During that time, Parsons
requested scheduling accommodations, but her supervisors
responded that she was not trying or working hard enough.
Despite those issues, in August of 2020, Parsons received a
satisfactory performance review.
The next day, on August 21, 2020, Anna spoke with Human
Resources regarding the Family Medical Leave Act, as well as
accommodations for her disability. She continued to have
difficulties with productivity and received criticism and
additional attention from supervisors. On January 26, 2021,
Parsons took FMLA leave. When she returned from leave in mid-
March 2021, she was demoted to “case aid status,” which meant
she could not do assessments and could only assist in
investigations. Parsons resigned from her position with DHHS on
May 20, 2021.
On September 16, 2021, Parsons filed a charge of
discrimination with the New Hampshire Commission for Human
Rights (“NHCHR”) and the Equal Employment Opportunity Commission
(“EEOC”). In her amended complaint, Parsons states that her
charge of discrimination before the NHCHR “alleged violations of
the ADA, alleging failure to accommodate disability,
retaliation, and wrongful discharge.” Doc. no. 7, at 2 ¶ 11.
DHHS was ordered to respond and participated in the
3 investigation of Parson’s charges in that proceeding. Based on
its investigation, the NHCHR/EEOC found no probable cause to
support the claims and issued a right to sue letter.
After receiving the right to sue letter, Parsons filed this
action. She alleged four claims under Title I of the ADA (42
U.S.C. § 12101, et seq.) and Section 504 of the Rehabilitation
Act (29 U.S.C. § 794) (Counts I through IV) and one wrongful
discharge claim under state law (Count V). After DHHS moved to
dismiss, Parsons voluntarily dismissed her state law wrongful
discharge claim, Count V, leaving four claims under the ADA and
Section 504 of the Rehabilitation Act.
Discussion
DHHS moves to dismiss Parsons’s claims under the ADA in
Counts I through IV based on Eleventh Amendment sovereign
immunity. See Bd. of Trs. of Univ. of Ala. V. Garrett, 531 U.S.
356, 374 (2001) (invalidating Congress’s abrogation of sovereign
immunity for purposes of Title I of the ADA); accord Tennessee
v. Lane, 541 U.S. 509, 514 (2004); Torres-Alamo v. Puerto Rico,
502 F.3d 20, 24 (1st Cir. 2007). In her objection to the
motion, Parsons does not dispute that sovereign immunity applies
to Title I ADA claims under Garrett but argues that DHHS waived
sovereign immunity by participating in the NHCHR/EEOC
investigation of her charges without asserting sovereign
4 immunity and that, under Garrett, sovereign immunity does not
bar her equitable claims against DHHS. DHHS responds that
participation in the NHCHR/EEOC investigation did not waive
sovereign immunity and that the exception to sovereign immunity
recognized in Garrett for equitable claims applies only to
claims brought against state officials, not to claims against a
state agency such as DHHS.
DHHS did not move to dismiss Parsons’s claims under Section
504 of the Rehabilitation Act in Counts I through IV. For that
reason, the court does not address the Rehabilitation Act
claims, which survive DHHS’s motion to dismiss.
A. Waiver of Sovereign Immunity by Litigation Conduct
A state may waive the protection of sovereign immunity in
federal court through its litigation conduct when the state
voluntarily invokes federal court jurisdiction. Lapides v. Bd.
of Regents of Univ. Sys. of Ga., 535 U.S. 613, 619-622 (2002).
To be an effective waiver however, the state’s conduct “must be
‘unambiguous’ and ‘evince a clear choice to submit its rights to
adjudication by the federal courts.’” Consejo de Salud de la
Comunidad de la Playa de Ponce, Inc. v. Gonzalez-Feliciano, 695
F.3d 83, 104 (1st Cir. 2012) (cleaned up) (quoting Ramos–Piñero
v. Puerto Rico, 453 F.3d 48, 52 (1st Cir. 2006)). In
determining whether a waiver has occurred, the court’s focus is
5 on “the litigation act the State takes that creates the waiver.”
Lapides, 535 U.S. at 620.
When a state agency removes a case from state court to
federal court, its litigation conduct invokes the federal
court’s jurisdiction, and the state waives sovereign immunity.
Id. On the other hand, however, a state agency’s participation
in an EEOC proceeding to address a charge of discrimination does
not invoke federal court jurisdiction and does not waive
sovereign immunity. 1 Sullivan v. Univ. of Tex. Health Sci. Ctr.,
217 F. App’s 391, 392 (5th Cir. 2007); McGinty v. New York, 251
F.3d 84, 94 (2d Cir. 2001); Vanderhoff v. Arizona, 2017 WL
6415400, at *3 (D. Ariz. July 20, 2017); Coats v. Utah, 2013 WL
1624495, at *2 (D. Utah Mar. 25, 2013); Smith v. Kansas, 574 F.
Supp. 2d 1217, 1220 (D. Kan. 2008). Further, “‘[t]hat a State
is haled into federal court as a defendant against its will and
then defends itself once therein’” does not waive sovereign
immunity. Frederick v. New Hampshire, 2017 WL 1843080, at *2
(D.N.H. May 5, 2017) (quoting Consejo de Salud de la Comunidad
de la Playa de Ponce, Inc. v. Gonzalez–Feliciano, 695 F.3d 83,
104 (1st Cir. 2012)).
1 A state agency’s representations to its employees and the public that it complies with the requirements of the ADA do not waive sovereign immunity. Passaro v. Virginia, 935 F.3d 243, 248 (4th Cir. 2019); Dottin v. Texas Dep't of Crim. Just., No. 1:13-CV- 710, 2014 WL 11498078, at *5 (E.D. Tex. Nov. 25, 2014), aff'd, 627 F. App'x 397 (5th Cir. 2015).
6 Parsons argues, nevertheless, that DHHS waived sovereign
immunity by failing to raise the defense in the NHCHR/EEOC
proceeding. The Eleventh Amendment provides immunity to states
from suits by private parties in federal court. Garrett, 531
U.S. at 363. Eleventh Amendment immunity does not apply in
NHCHR/EEOC proceedings, which is the administrative mechanism
through which the EEOC investigates charges of discrimination to
determine whether probable cause exists to pursue the matter.
See Passaro v. Virginia, 935 F.3d 243, 248 (4th Cir. 2019). The
cases that Parsons cites outside of the EEOC context are
inapposite to the circumstances presented here. 2
2 In Taylor v. U.S. Dep’t of Labor, 440 F.3d 1 (1st Cir. 2005), cited by Parsons, an issue arose about intervention by the Assistant Secretary for Occupational Safety and Health in administrative proceedings before the Department of Labor, which would affect the sovereign immunity of defendants State of Rhode Island and the Department. When the Assistant Secretary was enjoined from intervening and the Secretary of Labor decided not to intervene, the Administrative Law Judge dismissed the plaintiffs’ case based on sovereign immunity. Id. at 4. The plaintiffs appealed, but the Administrative Review Board (“ARB”) affirmed the ALJ’s decision.
The plaintiffs appealed to the First Circuit Court of Appeals, arguing that the state had waived sovereign immunity by participating in the administrative proceedings. The court noted that in New Hampshire v. Ramsey, 366 F.3d 1, 15 (1st Cir. 2004), (also cited by Parsons) it had held that seeking review in federal court of an agency decision alone did not cause waiver of sovereign immunity, although using immunity to gain a litigation advantage could cause waiver. Id. at 5-6. The court found no waiver of sovereign immunity in Taylor and affirmed the ARB’s decision. Id. at 8. Parsons has not shown any effort by DHHS to use immunity in this case to gain a litigation advantage, as found in Ramsey.
7 Therefore, Parsons has not shown that DHHS waived the
protection of sovereign immunity in this case.
B. Exception to Sovereign Immunity under Garrett
Parsons contends that under Garrett she can enforce her ADA
claims for equitable relief against DHHS. “[T]he Supreme Court
has made clear that an official-capacity suit against a state
officer for injunctive relief may be brought to enforce the
duties imposed by Title I of the ADA.” Cushing v. Packard, 30
F.4th 27, 38 (1st Cir. 2022) (citing Garrett, 531 U.S. at 374
n.9). That is, private parties may enforce ADA standards “in
actions for equitable relief under Ex parte Young, 209 U.S. 123
. . . (1908).” Garrett, 531 U.S. at 968, n.9; see also Virginia
Office for Protection & Advocacy v. Stewart, 563 U.S. 247, 254
(2012) (discussing Ex parte Young).
The other cases Parsons cites do not address sovereign immunity. In Mercado v. Ritz-Carlton San Juan Hotel, Spa & Casino, 410 F.3d 41, 45 (1st Cir. 2005), the court held that the defendant’s failure to raise a timeliness defense before the EEOC did not cause waiver of the defense because the EEOC did not issue a decision on the merits. That decision, then, supports DHHS’s invocation of immunity in court rather than in the EEOC proceeding. In Ester v. Principi, 250 F.3d 1068, 1071- 72 (7th Cir. 2001), the defendant did not challenge the plaintiff’s claim in the EEOC proceeding on timeliness grounds, the plaintiff argued that the timeliness defense was waived, and the court agreed because timeliness affected the orderliness of the administrative proceeding. Id. at 1071. That principle does not apply here.
8 Importantly, “[t]he Ex parte Young doctrine allows suits
. . . for declaratory or injunctive relief against state
officers in their official capacities.” Reed v. Goetz, 598 U.S.
230, 234 (2023). As DHHS points out, Parsons brings ADA claims
against DHHS itself, not against a state official or officer in
his or her official capacity. Because Parsons has not alleged
an ADA claim against a state official or officer in his or her
official capacity, she has not brought a claim that is
cognizable under the Ex parte Young doctrine. Although DHHS
also disputes whether the relief Parsons seeks is prospective
injunctive relief within the Ex parte Young doctrine, that issue
need not be addressed here.
Conclusion
For the foregoing reasons, the defendant’s motion to
dismiss (doc. no. 10) is granted. The ADA claims in Counts I-
IV are dismissed. Count V is dismissed pursuant to the
plaintiff’s notice (doc. no. 11). The claims remaining are
under Section 504 of the Rehabilitation Act in Counts I-IV.
SO ORDERED.
____________________________ Steven J. McAuliffe United States District Judge
May 29, 2024
cc: Counsel of Record