HWANG v. KANSAS STATE UNIVERSITY
GRACE HWANG, Plaintiff,
v.
KANSAS STATE UNIVERSITY, Defendant.
Case No. 11-4185-EFM.
United States District Court, D. Kansas.
February 28, 2013.
MEMORANDUM AND ORDERERIC F. MELGREN, District Judge.
Defendant Kansas State University brings this motion to dismiss Plaintiff Grace Hwang's lawsuit alleging violations of the Rehabilitation Act of 1973.1 Hwang argues that KSU discriminated against her by forcing her to resign following a bone marrow transplant and then retaliated against her when she filed a grievance claim. KSU moves to dismiss the amended complaint on the grounds that Hwang failed to state a claim upon which relief can be granted. Although the Court is sympathetic to Hwang's misfortunes, the Court finds that she has failed to allege sufficient facts to maintain any of her claims against KSU and, therefore, grants the motion to dismiss. I. Factual and Procedural BackgroundPlaintiff Grace Hwang was employed as a professor at Defendant Kansas State University from 1994 until February 2010. Hwang was a Fulbright Scholar who graduated from KSU and also received a graduate degree at Tufts University and a law degree from Georgetown University Law Center. In the fall of 1994, Hwang began serving as an adjunct professor in KSU's MBA program. In 2005, she was elevated to an assistant professor in KSU's School of Leadership Studies. Hwang was employed through a year-to-year contract, although she alleges that it was the policy and practice of KSU to renew such contracts as a matter of course, absent reason to discharge the employee for cause. Hwang asserts that, while employed at KSU, she continuously received praise and positive evaluations from her supervisors and students, and that she maintained a favorable reputation on campus.
In 2005, Hwang underwent surgery, chemotherapy, and radiation treatment for breast cancer. She missed less than three weeks of work due to her illness, and subsequently returned to teach her full load of classes.
On June 23, 2009, Hwang again became ill and was diagnosed with leukemia. She was told that her survival depended on an aggressive course of chemotherapy and a bone marrow transplant. Hwang immediately received a bone marrow transplant from her brother. After the transplant, Hwang's immune system was compromised and she was still undergoing chemotherapy treatment. She therefore spent three months at the KU Medical Center, followed by three months at Hope Lodge, an inpatient cancer facility.
1. 29 U.S.C. § 794 et seq.
2. See K.A.R. 1-9-23.
3. It is unclear from the pleadings when Hwang's own leave was exhausted. Hwang's amended complaint states, "Her accumulated leave would be exhausted sometime in December . . . ." Am. Compl., Doc. 20, at ¶ 25. December 2009, however, marked six months after Hwang's diagnosis, not the two months Hwang had apparently accumulated on her own. Regardless, it is undisputed that the combination of Hwang's leave and the approved shared leave expired in February 2010. See E-mail to Hwang dated 2/19/10, Doc. 22-2, at 2.
4. K.A.R. 1-23-9(g)(1).
5. See E-mail to Tolar dated 2/11/10, Doc. 22-1, at 2.
6. E-mail to Hwang dated 2/19/10, Doc. 22-2, at 3.
7. Id.
8. E-mail to Tolar dated 2/20/10, Doc. 22-3, at 2.
9. 29 U.S.C. § 794.
10. Fed. R. Civ. P. 12(b)(6).
11. Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
12. Iqbal, 556 U.S. at 678 (citing Twombly, 566 U.S. at 556).
13. See Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008) (citations omitted); see also Fed. R. Civ. P. 8(a)(2).
14. Iqbal, 556 U.S. at 678-79.
15. See id. at 678 ("The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." (Citation omitted)).
16. Robbins, 519 F.3d at 1247 (quoting Twombly, 566 U.S. at 570).
17. 29 U.S.C. § 794(a).
18. 45 C.F.R. § 84.11(b).
19. 42 U.S.C. §§ 1211 et seq.
20. 29 U.S.C. § 794(d).
21. See Cohon ex rel. Bass v. New Mexico Dep't of Health, 646 F.3d 717, 725 (10th Cir. 2011) (citation omitted).
22. See U.S. Const. art. III; Sheldon v. Sill, 49 U.S. 441, 448-49 (1850).
23. See U.S. Const. amend. XI ("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."); Hans v. Louisiana, 134 U.S. 1, (1890) (interpreting the Eleventh Amendment as implicitly recognizing the doctrine of sovereign immunity, and also barring suits against a state by the state's own citizen); Sturdevant v. Paulsen, 218 F.3d 1160, 1164 (10th Cir. 2000).
24. See Edelman v. Jordan, 415 U.S. 651, 677 (1974) (holding that a party could raise an Eleventh Amendment defense on appeal because the defense "sufficiently partakes of the nature of a jurisdictional bar").
25. In Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985), the Supreme Court held that § 504 did not contain an explicit waiver of Eleventh Amendment immunity sufficient to subject states to suit in federal courts. Congress subsequently amended the Act to include what it intended to be a clear statement waiving the states' sovereign immunity from suits brought under § 504. See 42 U.S.C. § 2000d-7(a)(1). Citing language from the Supreme Court in the subsequent case of Lane v. Pena, 518 U.S. 187, 198 (1996), the Tenth Circuit held that states and state entities—such as state universities—that accept federal monies enumerated under 42 U.S.C. § 2000d-7 waive sovereign immunity from suit. See Robinson v. Kansas, 295 F.3d 1183, 1189-90 (10th Cir. 2002), abrogated on other grounds by Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159 (10th Cir. 2012); see also Brockman v. Wyoming Dep't of Family Servs., 342 F.3d 1159, 1168. The Court, however, recognizes that application of the foregoing case law to the differing sovereign immunities of the federal and state governments has not been thoroughly explored within the district. Compare Thomas v. Kan. Social and Rehabilitation Servs., No. 10-4154-JTM, 2012 WL 1034939 (D. Kan. Mar. 27, 2012) (relying on Tenth Circuit case law to hold that the Eleventh Amendment did not bar a claim against a state entity under § 504 of the Rehabilitation Act), with Sanders v. Shinseki, No. 11-4179-JTM, 2012 WL 5985469 (D. Kan. Nov. 29, 2012) (citing the Supreme Court's decision in Lane and concluding that the court would "follow U.S. Supreme Court precedent in holding that Congress did not waive the federal government's sovereign immunity for monetary damages in Section 504 claims" (emphasis added)). Therefore, the Court will leave the issue of sovereign immunity for another day.
26. See generally Ex parte Young, 209 U.S. 123 (1908) (holding that the Eleventh Amendment does not bar suits against state actors for injunctive relief because preventing a state official from performing allegedly illegal acts does not infringe upon a state's sovereignty).
27. See K.A.R. 1-23-9(g)(1).
29. Id. at 299.
30. Id. at 301-02.
31. Id. at 302.
32. 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)) ("But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not `show[n]'— `that the pleader is entitled to relief.'").
33. Am. Compl., Doc. 20, at ¶ 85. The Court is unclear about "the interactive process" cited by Hwang. Absent more facts, the Court will not assume that this process is a particular accommodation.
34. See U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401-02 (2002); Mason v. Avaya Communications, Inc., 357 F.3d 1114, 1122 (10th Cir. 2004).
35. Hwang mentions that KSU has a policy of granting year-long sabbaticals in her fourth claim of disparate treatment, but does not allege that she ever proposed this solution as a reasonable accommodation. See Am. Compl., Doc. 20, at ¶ 101. Furthermore, KSU's response claims that sabbatical was not available to non-tenured professors like Hwang. See Def. Resp., Doc. 22, at 18.
36. See Anderson v. Coors Brewing Co., 181 F.3d 1171, 1178 (10th Cir. 1999).
37. See Hennagir v. Utah Dep't of Corrections, 587 F.3d 1255, 1265 (10th Cir. 2009).
38. Anderson, 181 F.3d at 1179.
39. Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997).
40. Am. Compl., Doc. 20, at ¶ 100.
41. Id. at ¶ 105.