United States District Court, E.D. Michigan, Southern Division
CALVIN P. CONGDEN, Plaintiff,
MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants.
OPINION & ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION TO DISMISS (DKT. 7)
A. GOLDSMITH UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendants Michigan Department
of Health and Human Services (“DHHS”), Allison
Zinn, Zoe Lyons, and Emilee Hudson's motion to dismiss
(Dkt. 7). The issues have been fully briefed, and a hearing
was held on May 3, 2018. For the reasons stated below, the
Court grants in part and denies in part Defendants'
Calvin Congden is a former officer with Child Protective
Services (“CPS”), a division of DHHS. Compl.
¶ 10 (Dkt. 1). Congden began his position with CPS in
the summer of 2015, on a one year at-will probationary
period, after serving in the United States Army, and as a
corrections officer with the State of Michigan. Id.
¶¶ 13-15. As a result of his military service,
Congden was diagnosed with Post-Traumatic Stress Disorder
(“PTSD”) and anxiety. Id. ¶ 12.
year during the winter holidays, Congden would dress up as
Santa Claus for a charity event. Id. ¶ 16. On
December 15, 2015, prior to attending that year's event,
Congden put on his Santa Claus outfit at home, and posed for
a picture carrying his legally purchased semiautomatic rifle.
Id. ¶¶ 17, 19. Congden subsequently posted
the picture to his Facebook page. Id. ¶ 19.
Soon thereafter, the picture was viewed by Zinn, a managerial
employee at DHHS. Id. ¶ 23. After viewing the
picture, Zinn told Congden's coworkers to beware of
Congden because he was a veteran, owned firearms, and
“looked crazy” in the Facebook picture.
later learned of Zinn's statements and contacted his
state representative on January 10, 2016 to inform her of
what he perceived to be Zinn's discrimination against him
as a state employee. Id. ¶ 24. The next day,
Congden spoke with Hudson, another managerial employee at
DHHS, to inform her of Zinn's comments. Id.
¶ 25. He informed Hudson that he is a disabled veteran
and objected to Zinn's remarks. Id. Congden also
met with Lyons, a managerial employee at DHHS, to let her
know that he took issue with Zinn's remarks. Id.
¶ 26. Lyons asked Congden if he had contacted his state
representative about this issue, to which Congden
acknowledged that he had. Id. ¶¶ 27-28.
weeks after his meetings with Hudson and Lyons, Congden
received a disciplinary action for the first time at DHHS.
Id. ¶ 29. Over the next several months, Congden
continued to receive write-ups for minor infractions such as
falling behind on documentation and making simple grammatical
errors; other employees were not disciplined for identical
conduct. Id. ¶¶ 31-32. During
Congden's nine-month review, he was told by Hudson that
he was “emotionally unfit” for his position.
Id. ¶ 33. On July 5, 2016, Congden was informed
that his performance during the one-year probationary period
was unsatisfactory, and that he was being terminated prior to
the end of the period. Id. ¶ 34. Congden's
employment with DHHS ceased on July 15, 2016, after he was
allegedly constructively discharged. Id. ¶ 35.
now brings this suit, alleging that Defendants engaged in
First Amendment retaliation, Second Amendment retaliation,
and disability discrimination pursuant to the Rehabilitation
Act and the Americans with Disabilities Act
STANDARD OF REVIEW
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.' A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “[T]he tenet that a court must accept
as true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id.
Americans with Disabilities Act
first argue that Congden's claim brought under the
Americans with Disabilities Act of 1990 (“ADA”),
42 U.S.C. § 12101, et seq., should be dismissed
because it is barred by the Eleventh Amendment. The Eleventh
Amendment states that “[t]he 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.” U.S. Const. amend. XI.
“Although by its terms the Amendment applies only to
suits against a State by citizens of another State, [the
Supreme Court's] cases have extended the Amendment's
applicability to suits by citizens against their own
States.” Carten v. Kent State Univ., 282 F.3d
391, 394 (6th Cir. 2002) (quoting Bd. of Trs. v.
Garrett, 531 U.S. 356, 363 (2001)).
the Supreme Court has also held that “Congress may
abrogate the States' Eleventh Amendment immunity when it
both unequivocally intends to do so and act[s] pursuant to a
valid grant of constitutional authority.”
Garrett, 531 U.S. at 363. In Garrett, the
Court addressed whether the unequivocal abrogation of
immunity in Title I of the ADA, which prohibits employers,
including states, from discriminating in employment against
individuals with disabilities, see 42 U.S.C.
§§ 12111-17, was constitutional. The Court
ultimately concluded that the Constitution, specifically
Section V of the Fourteenth Amendment, did not grant Congress
the authority to abrogate the states' Eleventh Amendment
immunity from suits seeking money damages under Title I of
the ADA. Garrett, 531 U.S. at 374.
their motion, Defendants argue that Garrett bars
Congden's ADA claim because he is seeking monetary
damages under Title I. However, as Congden notes, Count IV of
his complaint, the count alleging a violation of the ADA,
states that “Plaintiff seeks injunctive relief under
the ADA against the Individual Defendants in their official
capacity to remedy their lawful behavior.” Compl.
¶ 77. Pursuant to Ex parte Young, 209 U.S. 123
(1908), “individuals can seek prospective injunctive
relief for Title I violations.” See Whitfield v.
Tennessee, 639 F.3d 253, 257 (6th Cir. 2011). “In
order to qualify under Ex parte Young, such an
action must seek prospective relief to end a continuing
violation of federal law” by individual state
officials. Carten, 282 F.3d at 395.
complaint makes clear that he is seeking injunctive relief in
the form of an order “reinstating Plaintiff to the
positions he would have if there had been no wrongdoing by
Defendants.” Compl., Relief Requested. At oral
argument, counsel for Defendants conceded that Congden was
properly seeking injunctive relief pursuant to Ex Parte
Young, and stated that Defendants were withdrawing their
motion to dismiss as to this claim. As a result, the Court
denies Defendants' motion to dismiss as to Congden's