Katherine Frederick v. NH DHHS

2017 DNH 089

• Court: District Court, D. New Hampshire
• Decided: May 5, 2017
• Docket: 14-cv-403-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Katherine Frederick, Plaintiff

v. Case No. 14-cv-403-SM Opinion No. 2017 DNH 089 State of New Hampshire, Department of Health And Human Services, Defendant

O R D E R

Katherine Frederick was employed by the State of New

Hampshire, Department of Health and Human Services (“DHHS” or

the “Department”) as a child support officer in its Conway, New

Hampshire, office. Her employment was terminated on September

21, 2012. On September 21, 2014, Frederick filed this suit,

advancing state and federal claims, including claims asserting

Title VII (Pregnancy Discrimination Act) violations,

retaliation, FMLA interference, and wrongful discharge. DHHS

moved to dismiss all of Frederick’s claims, and, on September

30, 2015, the court granted DHHS’s motion, without prejudice to

Frederick’s filing an amended complaint.

On November 13, 2015, Frederick filed an amended complaint,

asserting federal claims under Title VII (for gender

1 discrimination) and the Americans with Disabilities Act (“ADA”),

as well as a claim for wrongful discharge under state law. DHHS

again moved to dismiss. On August 16, 2016, the court granted

DHHS’s motion in part, dismissing Frederick’s Title VII claim,

but denied the motion with respect to Frederick’s ADA and

wrongful discharge claims.

On September 13, 2016, DHHS timely filed its answer,

raising as an affirmative defense “all applicable immunities.”

Document No. 28. Shortly thereafter, on October 26, 2016, DHHS

filed a motion for judgment on the pleadings, asserting its

immunity from suit under the Eleventh Amendment. Frederick

objects.

Standard of Review

Federal Rule of Civil Procedure 12(c) provides that,

“[a]fter the pleadings are closed but within such time as not to

delay the trial, any party may move for judgment on the

pleadings.” “The standard of review of a motion for judgment on

the pleadings under Federal Rule of Civil Procedure 12(c) is the

same as that for a motion to dismiss under Rule 12(b)(6).”

Marrero-Gutierrez v. Molina, 491 F.3d 1, 5 (1st Cir. 2007)

(citations omitted). Accordingly, “[t]he court accepts the

plaintiff's well-pleaded facts as true and draws all reasonable

2 inferences in the plaintiff's favor.” Holder v. Town of Newton,

No. 09-CV-341-JD, 2010 WL 3211068, at *1 (D.N.H. Aug. 11, 2010)

(citing Citibank Global Mkts., Inc. v. Santana, 573 F.3d 17, 23

(1st Cir. 2009)). Judgment on the pleadings should be entered

“only if the uncontested and properly considered facts

conclusively establish the movant's entitlement to a favorable

judgment.” Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 54 (1st

Cir. 2006).

Discussion

In support of its motion, DHHS notes that the State has not

consented to be sued in federal court with regard to claims

under Title I of the ADA or for wrongful termination, nor has

Congress validly abrogated the Eleventh Amendment with regard to

the ADA. Therefore, DHHS says, it is immune from this suit.

Frederick does not dispute DHHS’s contention that the State

is entitled to Eleventh Amendment immunity with respect to her

ADA and wrongful termination claims. Instead, she argues that

the State waived its Eleventh Amendment immunity by voluntarily

litigating the case on the merits. Frederick points out that

the case has been pending for over two years, during which time

the court has ruled on two motions to dismiss filed by DHHS.

That course of conduct, says Frederick, establishes the State’s

3 intent to waive its immunity and litigate the case on the

merits. Frederick argues that DHHS “kept its immunity chip in

its back pocket” until the court declined to dismiss two of her

claims in its order on DHHS’s second motion to dismiss. Only

then, Frederick says, did DHHS invoke its “immunity chip” to

“get a do-over” in state court. Pl.’s Br. at 5. Therefore, she

argues, DHHS should not be permitted to invoke the Eleventh

Amendment because inconsistency and unfairness will result.

”The Eleventh Amendment provides that the ‘Judicial power

of the United States shall not be construed to extend to any

suit . . . commenced or prosecuted against one of the States” by

citizens of another State, U.S. Const., Amdt. 11, and (as

interpreted) by its own citizens.’” Lapides v. Bd. of Regents,

535 U.S. 613, 618 (2002) (quoting Hans v. Louisiana, 134 U.S. 1,

10 (1890)). “As a general matter, ‘states are immune under the

Eleventh Amendment from private suit in the federal courts.’”

Wojcik v. Mass. State Lottery Comm., 300 F.3d 92, 99 (1st Cir.

2002) (quoting Greenless v. Almond, 277 F.3d 601, 606 (1st Cir.

2002)).

However, “[a] State remains free to waive its Eleventh

Amendment immunity from suit in a federal court.” Lapides, 535

U.S. at 618. A state can waive its Eleventh Amendment immunity

to suit in three ways: (1) by “clear declaration that it intends 4 to submit itself to the jurisdiction of a federal court;”

(2) “by consent to or participation in a federal program for

which waiver of immunity is an express condition;” or (3) “by

affirmative conduct in litigation.” Taylor v. U.S. Dept. of

Labor, 440 F.3d 1, 5 (1st Cir. 2005) (quotations omitted).1 But,

“[b]ecause the sovereign's decision to waive such immunity to

suit must be ‘altogether voluntary,’ the ‘test for determining

whether a State has waived its immunity from federal-court

jurisdiction is a stringent one.’” Maysonet-Robles v. Cabrero,

323 F.3d 43, 50 (1st Cir. 2003) (quoting College Savs. Bank v.

Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675

(1999) (further quotations omitted)).

Frederick argues that the state has waived its Eleventh

Amendment immunity through affirmative conduct in this

litigation. “As a general proposition, waiver by litigation

conduct requires a showing that a state has voluntarily invoked

the jurisdiction of the federal courts.” Bergemann v. Rhode

Island Dep't of Envtl. Mgmt., 665 F.3d 336, 340 (1st Cir. 2011)

1 Congress may also abrogate a State’s sovereign immunity through legislation. See Consejo de Salud de la Comunidad de la Playa de Ponce, Inc. v. Gonzalez-Feliciano, 695 F.3d 83, 103 (1st Cir. 2012). However, in Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 360 (2001), the Supreme Court held that Congress did not effectively abrogate the states’ immunity with respect to Title I of the ADA, and therefore suits in federal court by state employees to recover money damages are barred by the Eleventh Amendment. 5 (internal quotation marks, citation and alteration omitted).

“If litigation conduct is to constitute a waiver of immunity,

that conduct must be ‘unambiguous’ and ‘must evince a clear

choice to submit [the state's] rights for adjudication by the

federal courts.’” Ramos-Pinero v. Puerto Rico, 453 F.3d 48, 52

(1st Cir. 2006) (quoting Maysonet-Robles, 323 F.3d at 52). In

Lapides, 535 U.S. 613, for example, the Supreme Court determined

that a state waived its Eleventh Amendment immunity by

voluntarily invoking federal jurisdiction by removing a case to

the federal courts. The Court explained that, when determining

whether a state has indicated intent to waive immunity, the

focus is on “the litigation act the State takes that creates the

waiver.” Lapides, 535 U.S. at 620.

Frederick fails to identify any particular act taken by

DHHS that unambiguously suggests an intent to waive its

Constitutional immunity. To the extent that she is arguing that

DHHS indicated that intent by filing motions to dismiss, her

argument is ineffective. See, e.g., Inacom Corp. v. Comm. of

Mass., 2 F. Supp. 2d 150, 154–55 (D. Mass. 1998) (“Although the

Commonwealth has done more than merely appear, most of its

actions, including opposing a preliminary injunction on the

merits and opposing discovery, were responses to initiatives by

the plaintiff. The Commonwealth's other actions (moving for

6 additional time to answer, filing an answer, reserving the right

to assert counterclaims, preparing for trial, and filing two

motions to dismiss, one of which was based on the Eleventh

Amendment bar) do not support a determination of waiver of or

preclusion to assert Eleventh Amendment immunity.”). See also

Diaz v. Dep't of Educ., 823 F. Supp. 2d 68, 73 (D.P.R. 2011)

(“the Court understands that the type of affirmative action that

constitutes Eleventh Amendment immunity waiver is absent in this

case. Even if, as Plaintiff argues, the DOE's behavior were to

be considered as showing an unjustified and inexcusable lack of

diligence, the Court cannot simply punish it by ignoring the

Eleventh Amendment.). As our court of appeals has noted:

The Supreme Court's cases are as clear as they are consistent in holding that a State only waives its immunity under the Eleventh Amendment when it voluntarily entreats a federal court to adjudicate its rights. That a State is haled into federal court as a defendant against its will and then defends itself once therein will not do. See Fla. Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670, 683 n.18 (1982) (“The fact that the State appeared and offered defenses on the merits does not foreclose consideration of the Eleventh Amendment issue....”).

Consejo de Salud de la Comunidad de la Playa de Ponce, Inc. v.

Gonzalez-Feliciano, 695 F.3d 83, 104 (1st Cir. 2012) (additional

citations and parentheticals omitted).

7 Here, the choice to litigate in federal court was

Frederick’s, not the State’s. DHHS has appeared only to defend

the action. DHHS has not asserted a counterclaim, filed a

third-party action or taken any other affirmative conduct that

would suggest it was “submit[ting] its rights for adjudication

in the federal courts.” New Hampshire v. Ramsey, 366 F.3d 1, 16

(1st Cir. 2004); see Paul N. Howard Co. v. Puerto Rico Aqueduct

Sewer Auth., 744 F.2d 880, 886 (1st Cir. 1984) (“where

[defendant] not only appeared but filed a counterclaim and a

third-party complaint, we have little trouble concluding that

[it] voluntarily submitted to the jurisdiction of the federal

court, thereby waiving any Eleventh Amendment immunity it might

or might not have enjoyed.”); see also Candela Corp. v. Regents

of Univ. of California, 976 F. Supp. 90, 92–93 (D. Mass. 1997)

(“By removing the action, answering the complaint,

counterclaiming, and opposing a motion to remand on immunity

grounds, the [state] has clearly and unequivocally waived its

Eleventh Amendment immunity to suit in the present case.”).

DHHS timely raised its immunity defense in its answer, and in

its motion for judgment on the pleadings. Accordingly, the

court cannot conclude that DHHS’s conduct amounts to its having

voluntarily invoked the jurisdiction of the court.

8 Finally, in support of her argument that it would be unfair

to allow DHHS to invoke its Eleventh Amendment immunity,

Frederick characterizes the proceedings in this action thus far

as “extensive litigation on the merits.” Pl.’s Reply Br. at 2.

But, that characterization probably overstates the situation.

While Frederick’s case has been pending for over two years,

litigation activity has concerned motions to dismiss. DHHS

raised the immunity defense in its answer, and promptly filed a

motion for judgment on the pleadings on that basis. The parties

have not yet progressed to discovery. Given the suit’s status,

the out-of-circuit cases upon which Frederick relies in her

briefing are distinguishable and unpersuasive. See Hill v.

Blind Indus. & Servs., 179 F.3d 754, 758 (9th Cir. 1999)

(finding waiver when defendants asserted Eleventh Amendment

immunity on the first day of trial); Arizona v. Bliemeister (In

re Bliemeister), 296 F.3d 858, 861 (9th Cir. 2002) (finding

waiver when state asserted Eleventh Amendment immunity after

failing to raise it in its answer, motion for summary judgment,

or at oral argument on the merits before the court where that

court announced its preliminary leanings).

9 Conclusion

For the foregoing reasons, as well as those set forth in

DHHS’s memoranda (documents no. 29-1 and 33), DHHS’s motion for

judgment on the pleadings (document no. 29) is GRANTED.

The clerk of court shall enter judgment in accordance with

this order, and close the case.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

May 5, 2017

cc: Benjamin T. King, Esq. Elizabeth A. Lahey, Esq. Lisa M. English, Esq.