Walsh v. Nevada Department of Human Resources ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NANCY WALSH, 
Plaintiff-Appellant,
v. No. 04-17440
NEVADA DEPARTMENT OF HUMAN  D.C. No.
CV-04-00459-ECR
RESOURCES, Division of Healthcare,
Finance and Policy; STATE OF OPINION
NEVADA,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, District Judge, Presiding
Submitted November 17, 2006*
San Francisco, California
Filed December 18, 2006
Before: John T. Noonan, Emmett Ripley Cox,** and
Richard A. Paez, Circuit Judges.
Opinion by Judge Noonan
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Emmett Ripley Cox, Senior United States Circuit
Judge for the Eleventh Circuit, sitting by designation.
19527
19530 WALSH v. NEVADA DEP’T OF HUMAN RESOURCES
COUNSEL
Kenneth J. McKenna, Reno, Nevada, for the plaintiff-
appellant.
Cynthia Pyzel, Chief Deputy Attorney General, State of
Nevada, for the defendants-appellees.
OPINION
NOONAN, Circuit Judge:
Nancy Walsh appeals the dismissal of her suit under the
Americans with Disabilities Act (ADA), 42 U.S.C.
§ 12117(a), against the State of Nevada, the State Department
of Human Resources, and individual employees of the
WALSH v. NEVADA DEP’T OF HUMAN RESOURCES 19531
Department. Holding that the state defendants are immune
and that the individuals cannot be sued for money damages,
and that the request for injunctive relief suffered several infir-
mities, we affirm the judgment of the district court.
FACTS
Walsh began working for the Nevada Department of
Human Resources (“Department”) in February 2001. Several
years before her employment, Walsh was diagnosed with
obsessive-compulsive disorder (“OCD”), an anxiety disorder.
For two years, she made no request for special accommoda-
tion and received “solid” performance reviews.
In March 2003, Walsh began working directly for program
specialist Jeri Bennett. Under Bennett’s supervision, Walsh
experienced increased anxiety and depression, as well as a
return of ritualistic behaviors such as counting and checking.
On April 16, Walsh and Bennett had an altercation that
resulted in an investigation by Bennett’s supervisor, Social
Services Chief Tina Gerber-Winn. On April 21, 2003, Walsh
wrote a memo informing Gerber-Winn of her OCD. She
asked to report to a different supervisor, and to be “placed in
a quiet atmosphere, away from traffic areas.” On April 24,
Gerber-Winn issued Walsh a written reprimand for her “re-
fusal to comply with a reasonable and proper order or instruc-
tion from supervisor” during the April 16 altercation with
Bennett.
On April 29, Walsh obtained a note from her physician
stating that she was under his care for OCD and that “she
would be a more productive employee” with a “(1) more quiet
work environment; [and a] (2) change in supervisor.”
On July 15, Walsh’s supervisors placed cubicles around her
workspace. Bennett stated in front of Walsh’s co-workers that
the cubicles were installed at Walsh’s request. The cubicles
failed to provide Walsh a quiet work environment. Bennett
19532 WALSH v. NEVADA DEP’T OF HUMAN RESOURCES
refused Walsh’s “numerous” requests for meetings to discuss
her disability. Walsh, following orders from her physician and
nurse practitioner, did not report to work from July 31 until
September 22. On August 11, Walsh received a phone call
from a colleague informing her that Bennett had been discuss-
ing Walsh’s absence and possible termination with other staff
members.
The following year, on June 24, 2004, Walsh’s doctor
ordered her not to return to work. Her employment with the
Department ended on July 1, 2004.
PROCEEDINGS
On December 13, 2003, Walsh filed a Charge of Discrimi-
nation with The Nevada Equal Rights Commission and the
U.S. Equal Employment Opportunity Commission (“EEOC”),
alleging that the Nevada Department of Human Resources
had violated the ADA. The EEOC issued Walsh a Dismissal
and Notice of Rights on June 7, 2004.
On August 25, 2004, Walsh filed suit in federal court.
Naming the State of Nevada and the Department as defen-
dants, she alleged that her supervisors had discriminated
against her on the basis of her disability in violation of the
ADA. In her complaint, she claimed that she was discrimi-
nated against because once supervisors were made aware of
her condition, they gave her a baseless reprimand, yelled at
her regarding performance, refused meetings to discuss her
condition, denied accommodation for her disability, harassed
her with statements regarding her condition and possible ter-
mination, and created a work environment that exacerbated
her disability. She requested four forms of relief: (1) compen-
satory and/or punitive damages, (2) economic damages, (3)
costs and attorney’s fees, and (4) “such other and further
relief, including injunctive relief, to force the defendant to
adopt and enforce lawful policies regarding discrimination
based on disability.”
WALSH v. NEVADA DEP’T OF HUMAN RESOURCES 19533
The State moved for Judgment on the Pleadings under Fed.
R. Civ. P. 12(c) on September 15, 2004. It characterized
Walsh’s claim as a Title I ADA claim since it arose out of her
employment. Citing Board of Trustees of the University of
Alabama v. Garrett, 531 U.S. 356 (2001), the State argued
that it was immune from suits brought under Title I of the
ADA.
On October 4, 2004, in a “Motion to File First Amended
Complaint and Response to Defendant’s Motion for Judgment
on the Pleadings,” Walsh sought to add Bennett and Gerber-
Winn as individual defendants. Walsh did not address any of
the arguments presented in the State’s Rule 12(c) motion.
In its Opposition to Walsh’s motion to amend her com-
plaint, filed October 15, 2004, the State argued that not only
was it immune from suit under Garrett, individual employees
were also immune from ADA suits under Miller v. Maxwell’s
International, Inc. 991 F.2d 583 (9th Cir. 1993).
On November 12, 2004, the district court granted the
State’s Motion for Judgment on the Pleadings and denied
Walsh’s Motion to File First Amended Complaint. The court
entered judgment in favor of the State and against Walsh. In
its Minute Order, the court held that the State was immune
from ADA suits under Garrett and that individual employees
were not personally liable for ADA violations under Miller.
The court also asserted that “it [did] not appear that further
amendment of the complaint would enable plaintiff to state a
viable cause of action.”
Walsh filed a timely Notice of Appeal on December 7,
2004.
ANALYSIS
State Immunity. A judgment on the pleadings pursuant to
Fed. R. Civ. P. 12(c) is reviewed de novo. Living Designs,
19534 WALSH v. NEVADA DEP’T OF HUMAN RESOURCES
Inc. v. E.I. Dupont de Nemours & Co., 431 F.3d 353, 360 (9th
Cir. 2005).
[1] Title I of the ADA enables individuals who have suf-
fered employment discrimination because of their disabilities
to sue employers for damages and injunctive relief in federal
court. 42 U.S.C. § 12117(a). State governments can invoke
the Eleventh Amendment’s guarantee of sovereign immunity
against Title I suits seeking money damages. Garrett, 531
U.S. at 360. Sovereign immunity, however, does not bar Title
I suits against state officials for prospective injunctive and
declaratory relief. Id., at 374 fn. 9; see also Ex parte Young,
209 U.S. 123 (1908).
Walsh does not dispute that Garrett shields the State from
her claims for money damages. She argues instead that judg-
ment on the pleadings was improperly granted because she
had also asserted a claim for injunctive relief that could over-
come the sovereign immunity bar. Her argument fails, for two
reasons: First, while Walsh arguably made a request for
injunctive relief in her pleadings, she lacked standing to bring
a claim for the type of injunctive relief she sought. Second,
she failed to raise the issue of injunctive relief before the dis-
trict court and is barred from doing so on appeal.
[2] The Federal Rules of Civil Procedure describe “a liberal
system of ‘notice pleading.’ ” Leatherman v. Tarrant County
Narcotics Intelligence & Coordination Unit, 507 U.S. 163,
168 (1993). Fed. R. Civ. P. 8(a) requires a complaint to con-
tain only (1) a statement of jurisdiction, (2) “a short and plain
statement of the claim showing that the pleader is entitled to
relief,” and (3) “a demand for judgment for the relief the
pleader seeks.” A claimant’s “short and plain” statement need
only give “the defendant fair notice of what the plaintiff’s
claim is and the grounds upon which it rests.” Conley v. Gib-
son, 355 U.S. 41, 47 (1957).
[3] In her prayer for relief, Walsh makes an explicit claim
for “injunctive relief to force the defendant to adopt and
WALSH v. NEVADA DEP’T OF HUMAN RESOURCES 19535
enforce lawful policies regarding discrimination based on dis-
ability.” This statement clearly fulfills Rule 8(a)(3)’s require-
ment of a “demand for judgment.” Nonetheless, Walsh’s
single reference to injunctive relief is insufficient because it
is unsupported by any facts or allegations regarding the
Department’s failure to adopt or enforce discrimination poli-
cies. Walsh made no assertions that the discrimination she
suffered was caused by the failure to enforce a state policy,
or that such discrimination could be cured by an official pol-
icy.
[4] Even if Walsh properly put the Department on notice of
her claim, she lacked standing to request injunctive relief to
force the Department to adopt and enforce lawful policies
regarding discrimination based on disability. To have standing
to bring a claim for relief, a plaintiff must show that she has
(1) suffered an injury that (2) was caused by the defendant
and (3) is likely to be redressed by the relief she seeks. Thin-
ket Ink Info. Res., Inc. v. Sun Microsytems, Inc., 368 F.3d
1053, 1057 (9th Cir. 2004).
[5] Walsh’s complaint satisfies the first two standing
prongs, since she asserts that the Department discriminated
against her due to her disability. But her complaint does not
satisfy the third. Walsh is no longer an employee of the
Department. She admits that her employment ended in 2004.
There is no indication in the complaint that Walsh has any
interest in returning to work for the State or the Department.
Therefore, she would not stand to benefit from an injunction
requiring the anti-discriminatory policies she requests at her
former place of work. Some case law in this circuit indicates
that a non-employee may have standing to sue for injunctive
relief against an employer, but those non-employees were in
the process of seeking reinstatement to their former positions,
or seeking work from that employer. See Freitag v. Ayers,
___ F.3d ___ , 2006 WL 3110975 (9th Cir. 2006); Nanty v.
Barrows Co., 660 F.2d 1327 (9th Cir. 1981). Walsh, there-
19536 WALSH v. NEVADA DEP’T OF HUMAN RESOURCES
fore, lacked standing to sue for injunctive relief from which
she would not likely benefit.
[6] Even if Walsh had properly pleaded her claim for
injunctive relief, she failed to preserve the issue for appeal.
Issues not presented to a district court generally cannot be
heard on appeal. Whittaker Corp. v. Execuair Corp., 953 F.2d
510, 515 (9th Cir. 1992). No “bright line” exists to determine
whether an issue has been properly raised below, but “a work-
able standard is that the issue must be raised sufficiently for
the trial court to rule on it.” Id. A plaintiff who makes a claim
for injunctive relief in his complaint, but fails to raise the
issue in response to a defendant’s motion to dismiss on the
grounds of immunity from money damages, has effectively
abandoned his claim, and cannot raise it on appeal. Imperial
v. Suburban Hosp. Ass’n, Inc., 37 F.3d 1026 (4th Cir. 1994).
Without any “overture to the district court to suggest that [the
plaintiff] had a continuing interest in pursuing injunctive
relief which would survive the immunity defense . . . the dis-
trict court had no reason to consider the contention that the
claim for injunctive relief could not be dismissed.” Id. at
1031. By failing to raise her injunctive relief claim before the
district court, Walsh forfeited the right to raise her claim on
appeal.
[7] Individual Liability. This circuit has never addressed
whether individuals may be personally liable under Title I of
the ADA. The circuit has ruled that individuals may not be
sued for damages under an analogous statute, Title VII of the
Civil Rights Act of 1964 (“Title VII”). See Miller, 991 F.2d
at 587. In Miller, the court reasoned that Congress limited lia-
bility under Title VII to employers with 15 or more employ-
ees because it “did not want to burden small entities with the
costs associated with litigating discrimination claims.” Id. It
was therefore “inconceivable” that Congress intended to
allow individual employees to be sued under Title VII. Id.
Walsh argues that Miller is not applicable to her case since
it does not address the ADA. Miller does not address the
WALSH v. NEVADA DEP’T OF HUMAN RESOURCES 19537
ADA directly, but other circuit courts and numerous district
courts have applied its reasoning to protect individuals from
ADA liability. See, e.g., Koslow v. Commonwealth of Penn-
sylvania, 302 F.3d 161, 177 (3rd Cir. 2002); Sullivan v. River
Valley Sch. Dist., 197 F.3d 804, 808 n.1 (6th Cir. 1999); But-
ler v. City of Prairie Village, 172 F.3d 736, 744 (10th Cir.
1999); Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir.
1996); EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276,
1279-80 (7th Cir. 1995); Ostrach v. Regents of the Univ. of
California, 957 F. Supp. 196, 200 (E.D. Cal. 1997).
[8] The statutory scheme and language of the ADA and
Title VII are identical in many respects. Specifically, the
ADA’s definition of “employer” tracks that of Title VII, and
similarly limits liability to employers with 15 or more work-
ers. Compare 42 U.S.C. § 2000e(b) with 42 U.S.C.
§ 12111(5)(a). Furthermore, Title I of the ADA invokes the
same “powers, remedies and procedures” as those set forth in
Title VII. See 42 U.S.C. § 12117(a) (adopting 42 U.S.C.
§ 2000e-4 - 2000e-9).
[9] Because Title I of the ADA adopts a definition of “em-
ployer” and a remedial scheme that is identical to Title VII,
Miller’s bar on suits against individual defendants also applies
to suits brought under Title I of the ADA. The district court
was correct when it held that individual defendants cannot be
held personally liable for violations of the ADA.
For the foregoing reasons, the judgment of the district court
is AFFIRMED.