UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Anna Parsons

v. Case No. 23-cv-415-SM-TSM Opinion No.

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 ---,

, 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,

(1st Cir. 2006); Valentin v. Hospital

Bella Vista,

(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,

(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 (

, et seq.) and Section 504 of the Rehabilitation

Act (

) (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,

(2001) (invalidating Congress’s abrogation of sovereign

immunity for purposes of Title I of the ADA); accord Tennessee

v. Lane,

(2004); Torres-Alamo v. Puerto Rico,

(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.,

(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,

(1st Cir. 2012) (cleaned up) (quoting Ramos–Piñero

v. Puerto Rico,

(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,

.

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.

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,

(2d Cir. 2001); Vanderhoff v. Arizona,

, at *3 (D. Ariz. July 20, 2017); Coats v. Utah,

, at *2 (D. Utah Mar. 25, 2013); Smith v. Kansas,

(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,

, at *2

(D.N.H. May 5, 2017) (quoting Consejo de Salud de la Comunidad

de la Playa de Ponce, Inc. v. Gonzalez–Feliciano,

(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,

(4th Cir. 2019); Dottin v. Texas Dep't of Crim. Just., No. 1:13-CV- 710,

, at *5 (E.D. Tex. Nov. 25, 2014), aff'd,

(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,

. 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,

(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,

(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.

. 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,

, 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,

(1st Cir. 2022) (citing Garrett,

n.9). That is, private parties may enforce ADA standards “in

actions for equitable relief under Ex parte Young,

. . . (1908).” Garrett,

; see also Virginia

Office for Protection & Advocacy v. Stewart,

, 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,

(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,

, 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.

. 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,

, 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

9