Opinion
Civil Action 9:17-cv-03097-MBS-MGB
07-16-2018
Christine Terry, Plaintiff, v. The Beaufort County School District, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This case was removed from the Beaufort County Court of Common Pleas on November 15, 2017. (Dkt. No. 1.) On December 15, 2017, Plaintiff filed a Motion to Remand. (Dkt. No. 7.) For the reasons set forth herein, the undersigned recommends granting Plaintiff's Motion to Remand (Dkt. No. 7).
FACTUAL ALLEGATIONS
Plaintiff filed the instant action against Defendant The Beaufort County School District (the "Defendant" or the "School District"); she alleges that the School District "is a public school district as set forth" in South Carolina Code § 59-17-10 "operating and controlling the public schools located in Beaufort County, South Carolina as an authorized political subdivision of the State of South Carolina." (Compl. ¶ 2.) She alleges that she "is a certified teacher," and she "was contracted" by the Defendant "as a teacher at Whale Branch Middle School during the 2015-2016 school year." (Compl. ¶¶ 6-7.) Plaintiff further alleges that "[i]n the fall of 2015, Plaintiff had a sudden and unexpected impairment of her vision," and she "was given a leave of absence from her teaching to seek medical attention." (Compl. ¶¶ 8-9.) According to Plaintiff, "[i]nitially, . . . [her] sudden and unexpected vision impairment could not be adequately explained by her medical providers," but after "extensive testing and evaluation, Plaintiff was diagnosed with permanent and irreversible vision impairment on March 9, 2016." (Compl. ¶¶ 10-11.) Plaintiff alleges she "immediately informed the Defendant of her diagnosis." (Compl. ¶ 12.)
Plaintiff further alleges that on March 11, 2016, she met with Defendant's Human Resources Specialist, and during that meeting, she "was informed by an employee of the Defendant that because of her diagnosis of permanent and irreversible vision impairment, she would need to 'resign or be terminated.'" (Compl. ¶¶ 13-14.) According to Plaintiff, she "did not want to 'resign or be terminated,' but wanted to continue teaching." (Compl. ¶ 15.) Plaintiff alleges that after she consulted with the South Carolina Commission for the Blind, she "requested that the Defendant retain her as a teacher and make reasonable accommodations to assist her in keeping her job as a teacher." (Compl. ¶ 16.) Plaintiff alleges Defendant "provided no assistance or resources to the Plaintiff in suggesting or evaluating what accommodations might be available" but instead "insisted that the Plaintiff request specific accommodations that she would need to teach with vision impairment." (Compl. ¶¶ 17-18.) Plaintiff requested an "assistant or aid in the classroom until she could receive the training and equipment she would need," but "Defendant's Human Resources Specialist advised the Plaintiff that it was unreasonable to expect the District to hire another person." (Compl. ¶¶ 19-20.)
According to Plaintiff, she "subsequently amended her accommodation request in writing to include the use of a guide dog and special equipment," and in May of 2016, "the Defendant entered into a contract to employ the Plaintiff as a teacher for the 2016-2017 school year at the same school in a position to be determined." (Compl. ¶¶ 21-22.) After entering into this contract, however, "[o]n June 13, 2016, the Plaintiff was informed by the Human Resources Specialist that the accommodations she . . . requested were not reasonable and that she was being terminated as of July 1, 2016." (Compl. ¶¶ 23-24.) Plaintiff alleges that she "was informed on multiple occasions that she was being terminated from employment because of her impaired vision." (Compl. ¶ 28.)
Plaintiff lists the following causes of action in her Complaint: violation of the Americans with Disabilities Act and "Wrongful Termination/Discrimination on account of Handicap." (See generally Compl.)
DISCUSSION
In Plaintiff's Motion to Remand, Plaintiff contends that remand is appropriate, asserting that Defendant's "Notice of Removal fails to establish the jurisdiction of this court." (Dkt. No. 7-1 at 2 of 3.) Plaintiff asserts that the Defendant is a political subdivision of the State of South Carolina, and "the Eleventh Amendment prevents suits for money damages in federal court by citizens against a State or political subdivision of a state." (Dkt. No. 7-1 at 1, 3 of 3.) Plaintiff states, "Where the Eleventh Amendment prevents a federal court from exercising jurisdiction over an action against a State or its political subdivisions, remand under 42 U.S.C. §1447(c) is mandated." (Dkt. No. 7-1 at 3 of 3.)
"The burden of establishing federal jurisdiction is placed upon the party seeking removal." Mulcahey v. Columbia Organic Chemicals Co., 29 F.3d 148, 151 (4th Cir. 1994) (citing Wilson v. Republic Iron & Steel Co., 257 U.S. 92 (1921)). On a motion to remand, courts are obligated to "construe removal jurisdiction strictly because of the 'significant federalism concerns' implicated." Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th Cir. 2004) (quoting Mulcahey, 29 F.3d at 151). "If federal jurisdiction is doubtful, a remand is necessary." Mulcahey, 29 F.3d at 151 (citing In re Business Men's Assur. Co. of America, 992 F.2d 181, 183 (8th Cir. 1993); Cheshire v. Coca-Cola Bottling Affiliated, Inc., 758 F. Supp. 1098, 1102 (D.S.C. 1990)).
In the case sub judice, Plaintiff's claim pursuant to the Americans with Disabilities Act plainly "aris[es] under the Constitution, laws, or treaties of the United States," 28 U.S.C. § 1331, as federal law creates the claim, see Reed v. Heil Co., 206 F.3d 1055, 1058 (11th Cir. 2000) ("The federal district court would have had original jurisdiction over [the plaintiff's] ADA claim because it arose under federal law."); Sanders v. Lowe's Home Centers, LLC, Civ. A. No. 0:15- cv-02313-JMC, 2016 WL 5349085, at *2 (D.S.C. Sept. 26, 2016). Plaintiff contends, however, that this case should be remanded due to the Eleventh Amendment.
The Eleventh Amendment 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." "Even though the language of the Eleventh Amendment preserves sovereign immunity of only the States of the Union, it is settled that this protection extends also to state agents and state instrumentalities, . . . or stated otherwise, to arm[s] of the State and State officials." Cash v. Granville Cty. Bd. of Educ., 242 F.3d 219, 222 (4th Cir. 2001) (citing Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977)).
The Defendant in this action is the Beaufort County School District, and as the parties recognize, case law in this district is conflicting as to whether a school district is an arm of the State of South Carolina. In Child Evangelism Fellowship of South Carolina v. Anderson School District 5, 438 F. Supp. 2d 609 (D.S.C. 2006), Judge Herlong noted that "[t]here are conflicting opinions . . . from the District of South Carolina" on the issue of "whether a school district 'is to be treated as an arm of the State partaking of the State's Eleventh Amendment immunity, or is instead to be treated as a municipal corporation or other political subdivision to which the Eleventh Amendment does not extend." Child Evangelism, 438 F. Supp. 2d at 618-19 (quoting Mt. Healthy City Sch. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977)). Ultimately, after examining the record, Judge Herlong "conclude[d] that the Eleventh Amendment does not provide immunity" to the defendant, Anderson School District 5. Id. at 621. On the other hand, in Smith v. School District of Greenville County, 324 F. Supp. 2d 786, 796 (D.S.C. 2004), then-District Judge Floyd stated, "[T]he Court is of the firm opinion that the relationship between the Defendant school districts and the state is so close and the laws of this state are such as to render the Defendant school districts as arms of the state for purposes of Eleventh Amendment sovereign immunity. That is, to allow these cases to go forward would offend the notion that the state is to be accorded the respect owed to it as a joint sovereign." See also Eldeco, Inc. v. Skansa USA Bldg., Inc., 447 F. Supp. 2d 521, 524, 527 (D.S.C. 2006) (Judge Duffy noted that the District of South Carolina "has had varying opinions on whether South Carolina school districts are arms of the State," but concluded that the Charleston County School District is "an arm of the State of South Carolina" and dismissed the complaint against it for lack of subject matter jurisdiction because it "is immune from private suit"); Grady v. Spartanburg Sch. Dist. Seven, Civ. A. No. 7:13-cv-02020-GRA, 2014 WL 1159406 (D.S.C. Mar. 21, 2014) (Judge G. Ross Anderson concluded that the defendant Spartanburg School District Seven was not immune). Thus, there appears to be no consensus among the District Judges in the United States Court for the District of South Carolina as to whether a school district in South Carolina is an arm of the State.
Child Evangelism was reversed and remanded by the United States Court of Appeals for the Fourth Circuit on other grounds. See Child Evangelism Fellowship of S. C. v. Anderson Sch. Dist. Five, 470 F.3d 1062 (4th Cir. 2006).
Here, Plaintiff has asserted a claim pursuant to a federal statute, and Defendant removed it to federal court. As explained herein, however, removal on the facts of this case does not give rise to a waiver of Eleventh Amendment immunity. At bottom, the question of whether Defendant has Eleventh Amendment immunity requires an analysis of several factors, many of which are not readily ascertainable on the record before this court. See Cash v. Granville Cnty. Bd. of Educ., 242 F.3d 219, 221-24 (4th Cir. 2001) (in evaluating whether the "Granville County (North Carolina) Board of Education enjoys Eleventh Amendment immunity," the Fourth Circuit noted that while the "State treasury factor is 'the most salient factor in Eleventh Amendment determinations," the following factors are also relevant: "(1) the degree of control that the State exercises over the entity or the degree of autonomy from the State that the entity enjoys; (2) the scope of the entity's concerns—whether local or statewide—with which the entity is involved; and (3) the manner in which State law treats the entity"); Child Evangelism, 438 F. Supp. 2d at 618-19 (examining the effect on the State's treasury as well as "(a) the extent of control that the state exerts over the District and degree of autonomy that the entity enjoys from the state, (b) whether the entity deals with local rather than statewide concerns, and (c) the manner in which state law treats the entity").
In Lapides v. Board of Regents of University System of Georgia, 535 U.S. 613 (2002), the Supreme Court held that "the State's act of removing a lawsuit from state court to federal court waives" Eleventh Amendment immunity. Lapides, 535 U.S. at 616. While at first blush this ruling appears to indicate that Defendant waived immunity by removing this case, the Fourth Circuit's opinion in Stewart v. North Carolina, 393 F.3d 484 (4th Cir. 2005), appears to indicate otherwise. In Stewart, the Fourth Circuit noted,
The district court relied exclusively on Lapides for the conclusion that "[b]y removing this case to federal court, the defendants voluntarily invoke[d] federal court jurisdiction and are thereby deemed to have waived immunity." J.A. 87. We believe the district court read the rule of Lapides too broadly. Lapides addresses whether a state that removes an action to federal court having already consented to suit in its own courts can invoke Eleventh Amendment immunity; it does not resolve whether a state that has not consented to suit in its own courts maintains either the broader concept of sovereign immunity or Eleventh Amendment immunity upon voluntarily removing a case to federal court.Stewart, 393 F.3d at 488 (internal quotation marks and citations omitted).
Paul Lapides filed an action in state court against the State of Georgia, alleging claims in respect to which the state had already consented to suit in its own courts. The state removed the case to federal court and sought dismissal on the basis of Eleventh Amendment immunity. Because Georgia had already consented to suit in its own courts, the only issue was whether the state could regain immunity by removing the case to federal court and invoking the Eleventh Amendment. The Court soundly rejected that possibility, holding that "removal is a form of voluntary invocation of a federal court's jurisdiction sufficient to waive the State's otherwise valid objection to litigation of a matter ... in a federal forum." [Lapides, 535 U.S.] at 624, 122 S.Ct. 1640.
The Fourth Circuit found that the district court "failed to acknowledge the limited scope of Lapides," because "[t]he Court in Lapides did not resolve the effect, if any, of a state's voluntary decision to remove an action from which it would have been immune in its own courts." Stewart, 393 F.3d at 488-89. In Stewart, the Fourth Circuit distinguished Lapides, noting that "[u]nlike Georgia in Lapides, North Carolina had not consented to suit in its own courts for the relevant claims asserted by Stewart." Stewart, 393 F.3d at 490. The Stewart court stated, "[B]y removing the case to federal court and then invoking sovereign immunity. North Carolina did not seek to regain immunity that it had abandoned previously. Instead, North Carolina merely sought to have the sovereign immunity issue resolved by a federal court rather than a state court." Id. The Fourth Circuit held "that North Carolina, having not already consented to suit in its own courts, did not waive sovereign immunity by voluntarily removing the action to federal court for resolution of the immunity question." Id.
Turning to the case sub judice, it appears that South Carolina "has not waived its immunity from suit in state court for ADA claims." Means v. S.C. Dep't of Soc. Servs., Civ. A. No. 6:15-4104-HMH-KFM, 2017 WL 2189699, at *5 (D.S.C. Apr. 27, 2017), adopted at 2017 WL 2155431 (D.S.C. May 17, 2017). Accordingly, "the defendant's voluntary removal of this case to federal court has not effected a waiver of the State's immunity from suit for that claim." Id.; see also Ramos v. Berkeley County, Civ. A. No. 2:11-3379-SB-BM, 2012 WL 5292899, at *3 (D.S.C. Aug. 7, 2012), adopted at 2012 WL 5292895 (D.S.C. Oct. 25, 2012) (finding defendant's removal of case to federal court did not waive Eleventh Amendment immunity from suit on ADA claim).
Given the lack of consensus within the District concerning whether the Defendant has immunity pursuant to the Eleventh Amendment, and the fact that the Defendant did not present information sufficient for the undersigned to evaluate the factors set forth in Cash and Child Evangelism, the undersigned concludes that Defendant has failed to meet its burden of establishing federal jurisdiction. See Mulcahey, 29 F.3d at 151 ("The burden of establishing federal jurisdiction is placed upon the party seeking removal. Because removal jurisdiction raises significant federalism concerns, we must strictly construe removal jurisdiction. If federal jurisdiction is doubtful, a remand is necessary." (citations omitted)); see also Strawn v. AT & T Mobility LLC, 530 F.3d 293, 296-97 (4th Cir. 2008) ("[A] party seeking to adjudicate a matter in federal court must allege and, when challenged, must demonstrate the federal court's jurisdiction over the matter. If a plaintiff files suit in state court and the defendant seeks to adjudicate the matter in federal court through removal, it is the defendant who carries the burden of alleging in his notice of removal and, if challenged, demonstrating the court's jurisdiction over the matter. While a defendant filing a notice of removal under 28 U.S.C. § 1446(a) need only allege federal jurisdiction with a short plain statement—just as federal jurisdiction is pleaded in a complaint—when removal is challenged, the removing party bears the burden of demonstrating that removal jurisdiction is proper." (citations omitted)). In light of the foregoing, the undersigned recommends granting Plaintiff's Motion to Remand.
The undersigned notes the Supreme Court's opinion in Wisconsin Department of Corrections v. Schacht, 524 U.S. 381 (1998), wherein the Court addressed whether "defendants in a case filed in state court, with claims 'arising under' federal law, can remove that case to federal court--where some claims, made against a State, are subject to an Eleventh Amendment bar." Schacht, 524 U.S. at 383. The original state-court complaint in that case only asserted claims arising under federal law, though some of those claims were asserted against the state. Schacht, 524 U.S. at 385. The Court noted that the Seventh Circuit concluded that because the Eleventh Amendment "prohibited the assertion" of claims against the State in federal court, "the presence of even one such claim in an otherwise removable case deprived the federal courts of removal jurisdiction over the entire case." Schacht, 524 U.S. at 385. The Supreme Court vacated the Seventh Circuit's decision and concluded "that the presence in an otherwise removable case of a claim that the Eleventh Amendment may bar does not destroy removal jurisdiction that would otherwise exist." Id. Some language in Schacht seems to counsel against granting the motion at issue in the case sub judice. See id. at 388-90 ("The Eleventh Amendment, however, does not automatically destroy original jurisdiction. Rather, the Eleventh Amendment grants the State a legal power to assert a sovereign immunity defense should it choose to do so. The State can waive the defense. Nor need a court raise the defect on its own. Unless the State raises the matter, a court can ignore it. . . . [F]or purposes of removal jurisdiction, we are to look at the case as of the time it was filed in state court—prior to the time the defendants filed their answer in federal court. As of that time, a case that involved 'incomplete diversity' automatically would have fallen outside the federal courts' 'original jurisdiction.' By contrast, as of that time, the State's participation as a defendant would not automatically have placed the case outside the federal courts' jurisdictional authority. That is because the underlying relevant condition (the federal courts' effort to assert jurisdiction over an objecting State) could not have existed prior to removal, and because the State might not have asserted the defense in federal court, but could have decided instead to defend on the merits." (citations omitted)). However, the case sub judice does not appear to involve an "otherwise removable" case, and although it had not done so at the time it removed the case, Defendant has pled the defense of sovereign immunity, (see Ans. ¶ 51).
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that Plaintiff's Motion to Remand (Dkt. No. 7) be GRANTED and that this action be REMANDED to the Court of Common Pleas for Beaufort County, South Carolina.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE July 16, 2018
Charleston, South Carolina
The parties' attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).