United States District Court, E.D. Kentucky, Central Division, Lexington
OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT.
matter is before the Court on the Motion for Partial
Dismissal submitted by Defendant Kentucky Community and
Technical College System (“KCTCS”) d/b/a/
Bluegrass Community and Technical College
(“BCTC”). For the reasons stated below, the Court
grants Defendant's partial motion to dismiss
Plaintiff's claims brought under the Americans with
Disabilities Act and Family and Medical Leave Act and remands
all remaining claims to the Fayette Circuit Court.
KCTCS is a statewide network of colleges, made up of over
seventy campuses. Compl. ¶ 2, ECF No. 1-2. Plaintiff
Robin Davis, a resident of London, Kentucky, has been
employed as a statistics teacher for KCTCS at its BCTC campus
since 2000. Compl. ¶ 3. She is disabled, suffering from
Panic and Anxiety Disorder. Compl. ¶ 9. After being
diagnosed with cancer in 2009, Davis's Panic and Anxiety
Disorder symptoms intensified and BCTC ultimately
accommodated her by creating online courses so that her
students would not have their classes canceled. Compl. ¶
23. In December 2014, Davis requested that she be permitted
to teach exclusively online, but her request was denied by
the Dean of Academics. Compl. ¶¶ 33-34. Davis
submitted a Family and Medical Leave Act (“FMLA”)
request in Fall 2015 which the college granted. Compl. ¶
36-38. For the Spring 2016 semester, Davis again used FMLA
accommodations, but also submitted Americans with
Disabilities Act (“ADA”) paperwork to the college
and discussed her need for further accommodation with BCTC
administrators. Compl. ¶¶ 39-44. However, they
could not come to an agreement on further accommodations.
Compl. ¶¶ 45-48. Davis again submitted FMLA
paperwork for the Fall 2016 semester, which the college
accepted. Compl. ¶ 54. In August 2016, Davis filed a
Charge of Discrimination with the Equal Employment
Opportunity Commission (“EEOC) complaining that BCTC
failed to provide her with necessary accommodations. Compl.
¶ 55. In October 2016, however, Davis was demoted to a
lecturer position, which included a reduction in pay. Compl.
¶ 56. In summer 2017, Davis was informed that she would
not be able to teach summer classes, as she had previously
done, because she was unable to be physically present on
campus to serve as a proctor. Compl. ¶¶ 64-69.
Instead, because of her FMLA use in the spring semester, she
would be required to teach online summer classes for no
additional pay. Compl. ¶ 70. Shortly after the EEOC
issued Davis a Notice of Right to Sue on June 1, 2017, BCTC
informed her that she would not be permitted to teach online
classes as a form of accommodation and that she would be
terminated if she did not report to campus to teach in-person
classes during the fall 2017 semester. Compl. ¶¶
commenced this action in Fayette Circuit Court on August 8,
2017 asserting a number of claims. First, she claims that
KCTCS failed to accommodate her disability in violation of
the Kentucky Civil Rights Act, Ky. Rev. Stat. Ch. 344, et
seq., and the Americans with Disabilities Act, 42 U.S.C.
§§ 12101, et seq. Second, she claims that
KCTCS violated the Family and Medical Leave Act, 29 U.S.C.
§ 2615, by interfering with her use of FMLA leave.
Third, she claims that, in violation of the Kentucky Wage and
Hour Act, Ky. Rev. Stat. § 337.060, KCTCS illegally
withheld her pay. And fourth, Davis asserts that KCTCS
violated the anti-retaliation provisions of the Kentucky
Civil Rights Act, Ky. Rev. Stat. § 344.280, the ADA, 42
U.S.C. § 12203, the FMLA, 29 U.S.C. § 2615, and the
Kentucky Wage and Hour Act, Ky Rev. Stat. § 337.990. She
also seeks injunctive relief under the ADA, FMLA, and
Kentucky Civil Rights Act, and punitive damages. KCTCS
removed this matter to this Court on August 21, 2017, (DE 1),
and subsequently filed a motion for partial dismissal based
on sovereign and governmental immunity, (DE 4). Davis has
filed a response in opposition and KCTCS has filed a reply.
Accordingly, this matter is now ripe for review.
Standard of Review
motion to dismiss for lack of subject-matter jurisdiction
under Federal Rule of Civil Procedure 12(b)(1) may attack the
claim of jurisdiction on its face or it can attack the
factual basis for jurisdiction. Golden v. Gorno Bros.,
Inc., 410 F.3d 879, 881 (6th Cir. 2005). A facial attack
on jurisdiction “questions merely the sufficiency of
the pleading” and therefore this Court must
“take the allegations in the complaint as true, which
is a similar safeguard employed under 12(b)(6) motions to
dismiss.” Gentek Bldg. Products, Inc. v.
Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007)
(citing Ohio Nat'l Life Ins. Co. v. United
States, 922 F.2d 320, 325 (6th Cir.
1990)). The burden of proving jurisdiction in
order to survive a motion to dismiss lies on the plaintiff.
Nichols v. Muskingum College, 318 F.3d 674, 677 (6th
argues that Davis's claims based on the ADA and FMLA are
barred by Eleventh Amendment immunity. While KCTCS concedes
that the Commonwealth has waived its immunity under the
Kentucky Civil Rights Act, it contends that governmental
immunity bars Davis's Kentucky Wage and Hour Act claims.
Finally, KCTCS argues that Davis's claim for punitive
damages must also be dismissed because her only actionable
claim arises under the Kentucky Civil Rights Act, which does
not authorize recovery of punitive damages. These arguments
are addressed below.
ADA and FMLA
Eleventh Amendment to the United States Constitution
provides: “The Judicial power of the United States
shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.” The Supreme Court has
clarified that sovereign immunity “is demarcated not by
the text of the Amendment alone but by fundamental postulates
implicit in the constitutional design.” Alden v.
Maine, 527 U.S. 706, 729 (1999). It is well settled that
sovereign immunity extends to suits brought by a citizen
against the State in which he or she resides. See Hans v.
Louisiana, 134 U.S. 1 (1890). Eleventh Amendment
immunity shields both states and their agencies from suit.
See Alabama v. Pugh, 438 U.S. 781, 782 (1978)
(holding that claims against the Alabama Board of
Corrections, a state agency, were barred by the Eleventh
complaint, Davis alleges that KCTCS is a non-profit
corporation rather than an agency of the state. Compl. ¶
2. This assertion is contradicted by state statutes of which
this Court is required to take judicial notice. See
Godboldo v. Cty. of Wayne, 686 Fed.Appx. 335, 340 (6th
Cir. 2017) (“As we have previously held, we ‘are
required to take judicial notice of the statute and case law
of each of the states.'”) (quoting Schultz v.
Tecumseh Prods., 310 F.2d 426, 433 (6th Cir. 1962)).
KCTCS was created by the Kentucky General Assembly in 1997,
Ky Rev. Stat. § 164.580(1), and as such is an agency of
the state entitled to Eleventh Amendment immunity, see
Martin v. Univ. of Louisville, 541 F.2d 1171, 1174 (6th
Cir. 1976) (finding the University of Louisville was a state
institution for Eleventh Amendment purposes).
response brief, Davis appears to concede that KCTCS is an
agency of the state protected by Eleventh Amendment immunity.
She instead argues that the Commonwealth has waived such
immunity with regard to ADA and FMLA claims brought by KCTCS
employees. Waiver of a state's Eleventh Amendment
sovereign immunity protection may only be found where it is
“stated ‘by the most express language or by such
overwhelming implications from the text as (will) leave no
room for any other reasonable ...