ALISTAIR E. NEWBERN, Magistrate Judge.
Plaintiff Mathew Marble is the biological father of a minor child, H.S. The Tennessee courts terminated Marble's parental rights in 2015 on grounds that he had failed to pay child support and meet the requirements of a plan established by DCS for him to assume custody. (Doc. No. 99-1, PageID# 1031, ¶ 23; Doc. No. 101, PageID# 1159.) Marble challenged the termination of his parental rights in the Tennessee state courts unsuccessfully. He now brings this federal action to challenge the termination of his parental rights as having been in violation of Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12134, and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. (Doc. No. 88, PageID# 793.) The State of Tennessee and its Department of Children's Services (DCS), who are the remaining defendants to Marble's claims, have moved for summary judgment (Doc. No. 97). For the reasons that follow, Defendants' motion is GRANTED.
Plaintiff Matthew Marble alleges that Defendants State of Tennessee and Tennessee Department of Children Services (DCS) discriminated against him on the basis of his disabilities in the proceedings leading up to the termination of his parental rights to his daughter H.S. Marble suffers from Osgood-Schlatter disease, which causes knee pain; a seizure disorder that causes memory issues; blindness in his left eye; and a history of depression and trauma. (Doc. No. 98, PageID# 840; Doc. No. 99, PageID# 1011.) After H.S. was born in Tennessee in 2012, Marble, who was 18 years old at the time, returned to his home in Michigan. In re H.S., No. M2015-00842-COA-R3-PT, 2016 WL 3209444, at *1 (Tenn. Ct. App. May 31, 2016) (H.S. I); (Doc. No. 101). H.S. lived with her minor mother and her maternal grandmother, who was H.S.'s legal custodian. H.S. I., 2016 WL 3209444, at *1.
Marble came into contact with DCS after H.S. was seriously injured while in her mother's care. Id.; (Doc. No. 99, PageID# 1005). On June 23, 2013, H.S. was treated for head trauma and "a series of bruises on her face and torso," injuries that contributed to H.S.'s development of cerebral palsy. (Doc. No. 88, PageID# 755, ¶ 22; 774, ¶ 69). DCS became involved in H.S.'s care after "receiving a referral indicating drug exposure and lack of supervision." H.S. I, 2016 WL 3209444, at *1. Because H.S.'s mother "admitted to extensive drug use," H.S. was taken into DCS custody and immediately placed with foster parents. Id.; (Doc. No. 88, PageID# 755, ¶ 22; Doc. No. 99, PageID# 1005.) Because H.S.'s mother listed H.S.'s father as "unknown" in documents that she provided to DCS, it was not until Marble learned of H.S.'s injuries from a relative that he became involved in the determination of H.S.'s placement. H.S. I, 2016 WL 3209444, at *1; (Doc. No. 88, PageID# 755, ¶ 23).
Consistent with Tennessee law, DCS developed a permanency plan for H.S. after placing her in foster care. Tenn. Code Ann. § 37-2-403(a)(1)(A); (Doc. No. 88, PageID# 758, ¶ 30). A permanency plan must establish a placement goal for a child in state custody and include "a statement of responsibilities between the parents, the agency and the caseworker of such agency." Tenn. Code Ann. § 37-2-403(a)(1)(A)-(2)(A). The plan relevant to this action was created on September 5, 2013;, after a meeting at which Marble was present. (Doc. No. 88, PageID# 761-62, ¶¶ 41-43.) The plan's stated "permanency goals" for H.S. were to return to a parent's custody or, in the alternative, to be placed with a relative. (Doc. No. 98-3, PageID# 952.) To gain custody of H.S., the plan required Marble to:
(Id. at PageID# 987-88.) Also in early September 2013, DCS filed a petition alleging that H.S. was "dependent and neglected as to [Marble] because he had failed to file a petition to legitimate [her] and had failed to protect her from [her mother's] drug use." In re H.S., No. M2016-00387-COA-R3-JV, 2016 WL 7048840, at *2 (Tenn. Ct. App. Dec. 5, 2016) (H.S. II).
In October 2013, recognizing the limitations of his ability to be H.S.'s sole parent and consistent with the permanency plan's goal for H.S. to be in a relative's custody, Marble "approached his aunt and uncle, Will and Bobbi DuBoise, about being a possible placement for [H.S.]" H.S. II, 2016 WL 7048840, at *2; (Doc. No. 99-4, PageID# 1060, ¶ 3). Because the DuBoises also lived in Michigan, H.S. II, 2016 WL 7048840, at *2, they could not obtain custody of H.S. before the appropriate authorities in Michigan had a full opportunity to ascertain the circumstances of the proposed placement, consistent with the requirements of the Interstate Compact on the Placement of Children (ICPC). Tenn. Code Ann. § 37-4-201(b). In early 2014, DCS submitted an ICPC request to Michigan on behalf of the DuBoises and also on behalf of Marble, who was independently seeking custody. H.S. II, 2016 WL 7048840, at *2. The "Michigan investigator denied [Marble's] ICPC request because he could not support himself or [H.S.] and was reliant upon his grandmother for housing." Id. The DuBoises' ICPC request was approved in July 2014. (Doc. No. 99-2, PageID# 1035, ¶ 7; Doc. No. 99-4, PageID# 1061, ¶ 8; Doc. No. 100-1, PageID# 1144, ¶ 7.)
Shortly thereafter, DCS moved to place H.S. with the DuBoises for a trial home placement. H.S. II, 2016 WL 7048840, at *3. H.S.'s guardian ad litem objected, citing H.S.'s medical condition, the recent placement of other foster children into the DuBoises' home, and the fact that H.S.'s mother was still entitled to visitation in Tennessee twice a month. Id. H.S.'s mother also objected to the placement. Id. After an evidentiary hearing, the juvenile court of Macon County, Tennessee, found that it was "not in the best interest of [H.S.] to be placed in Michigan." (Doc. No. 130-1, PageID# 1399.) On the same day, the juvenile court "adjudicated [H.S.] dependent and neglected" as to Marble. H.S. II, 2016 WL 7048840, at *3. Marble and the DuBoises appealed the placement decision. Id. After a trial, the circuit court affirmed the juvenile court's finding that a placement with the DuBoises was not in H.S.'s best interest, stating:
Id. at *6.
On September 18, 2014, DCS moved to terminate Marble's parental rights, citing "the statutory grounds of substantial non-compliance with the permanency plan, abandonment by failure to support, and persistence of the conditions that led to the Child's removal." (Doc. No. 99-1, PageID# 1029, ¶ 19). The juvenile court terminated Marble's parental rights on the grounds of "(1) abandonment for failure to remit child support, (2) substantial noncompliance with the permanency plans, and (3) the persistence of conditions which led to removal." H.S. I, 2016 WL 3209444, at *7; (Doc. No. 99-1, PageID# 1031, ¶ 23). The Tennessee Court of Appeals affirmed the termination on grounds of nonpayment of child support and noncompliance with the permanency plans, but reversed the juvenile court's finding of the persistence of conditions that led to H.S.'s removal from her mother's custody. H.S. I, 2016 WL 3209444, at *1; (Doc. No. 99-1, PageID# 1031, ¶ 23). The Tennessee Court of Appeals also affirmed the dependency and neglect determination. H.S. II, 2016 WL 7048840, at *1.
Marble filed this lawsuit on May 4, 2014, alleging violations of Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 (Section 504). (Doc. No. 1, PageID# 32.) Marble named as defendants the State of Tennessee, DCS, former DCS Commissioner James Henry, Governor Bill Haslam, Lindsey Kenyon (the DCS case worker for H.S.), Lois Gregory (Kenyon's supervisor), Stacy Choate (DCS legal counsel), Virginia Thompkins (H.S.'s guardian ad litem from July 2013 to November 2014), Lisa Cothron (H.S.'s guardian ad litem beginning in November 2014), Camelot Care (a foster care organization that contracts with DCS), Dana Davis (H.S.'s foster mother), and Brandon Givens (H.S.'s foster father). (Id. at PageID# 4-10.) All defendants except the State of Tennessee and DCS have been dismissed from the action. (Doc. Nos. 51, 65, 84.)
The State and DCS filed a motion for summary judgment, supported by a memorandum of law (Doc. No. 98), a statement of undisputed facts (Doc. No. 98-1), and the deposition testimony of Marble and Lindsey Kenyon. Marble responded in opposition, filing a memorandum of law (Doc. No. 99), a response to Defendants' statement of undisputed facts (Doc. No. 99-1), a statement of additional undisputed facts (Doc. No. 99-2), and supporting evidence including affidavit testimony from proposed expert Janie L. Berryman (Doc. No. 99-3), Marble's aunt Bobbi DuBoise (Doc. No. 99-4), and Marble's attorney in these proceedings (Doc. No. 99-5), and a letter issued by the United States Departments of Justice and Health and Human Services in the matter of Sara Gordon (the Gordon Letter), which Marble cites as persuasive authority (Doc. No. 99-6). Defendants filed a reply (Doc. No. 100) and responded to Marble's statement of additional undisputed facts (Doc. No. 100-1).
This case was transferred to the Magistrate Judge's jurisdiction by consent of the parties on January 11, 2018. (Doc. No. 127.)
Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). To prevail, the moving party must prove the absence of a genuine issue of material fact as to any essential element of the opposing party's claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Stiles ex rel. D.S. v. Grainger Cty., 819 F.3d 834, 847 (6th Cir. 2016). In determining whether the moving party has met its burden, a court must view the factual evidence and draw all reasonable inferences in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Stiles, 819 F.3d at 848. A court must not weigh the evidence and determine the truth of the matters asserted but instead must "determine whether there is a genuine issue for trial." Jackson v. VHS Detroit Receiving Hosp., Inc., 814 F.3d 769, 775 (6th Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
If the nonmoving party fails to make a sufficient showing on an essential element of the case with respect to which she has the burden, however, the moving party is entitled to judgment as a matter of law. Martinez v. Cracker Barrel Old Country Store, Inc., 703 F.3d 911, 914 (6th Cir. 2013) (citation omitted). To preclude summary judgment, the nonmoving party must go beyond the pleadings and present specific facts demonstrating the existence of a genuine issue for trial. Shreve v. Franklin Cty., 743 F.3d 126, 132 (6th Cir. 2014) (citations omitted). "A mere scintilla of evidence by the nonmoving party is insufficient to defeat summary judgment; 2018there must be evidence on which the jury could reasonably find for the [nonmoving party].'" St. Clair Marine Salvage, Inc. v. Bulgarelli, 796 F.3d 569, 574 n.2 (6th Cir. 2015) (alteration in original) (quoting Anderson, 477 U.S. at 252). If the evidence offered by the nonmoving party is "merely colorable," "not significantly probative," or not enough to lead a fair-minded jury to find for the nonmoving party, the motion for summary judgment may be granted. Anderson, 477 U.S. at 249-52.
Defendants argue that they are entitled to summary judgment for two reasons. First, they assert immunity from Marble's claims under the Eleventh Amendment. (Doc. No. 98, PageID# 837.) Second, they argue that, even if they are subject to liability, Marble cannot support the claims of disability discrimination that he alleges. (Id. at PageID# 839-44.) Because the Court finds that no genuine issue of material fact exists in the record that Marble experienced discrimination on the basis of his disability, the Court addresses Defendants' sovereign immunity argument only briefly.
The Eleventh Amendment provides 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. . . ." U.S. Const. amend. XI. "The desire to protect the solvency and dignity of the states motivates the doctrine of Eleventh Amendment sovereign immunity." Lowe v. Hamilton Cty. Dep't of Job & Family Servs., 610 F.3d 321, 324 (6th Cir. 2010) (citing Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 52 (1994)). An entity that is considered an "arm of the state," like DCS, may also invoke a sovereign immunity defense. See Ernst v. Rising, 427 F.3d 351, 359 (6th Cir. 2005) (citing S.J. v. Hamilton Cty., 374 F.3d 416, 420 (6th Cir. 2004)); Harness v. Tenn. Dep't of Children's Servs., No. 3:09-CV-15, 2009 WL 2601840, at *2-3 (E.D. Tenn. Aug. 24, 2009).
Congress can abrogate state sovereign immunity "pursuant to the enforcement provisions of § 5 of the Fourteenth Amendment when Congress both `unequivocally intends to do so and `act[s] pursuant to a valid grant of constitutional authority.'" Babcock v. Michigan, 812 F.3d 531, 534 (6th Cir. 2016) (alteration in original) (quoting Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001)). Although Congress has expressed an unequivocal desire to abrogate the Eleventh Amendment for violations of the ADA via its Fourteenth Amendment authority, see 42 U.S.C. §§ 12101(b)(4), 12202, whether sovereign immunity is abrogated in a particular action is determined by looking to "the nature of the ADA claim" alleged. Babcock, 812 F.3d at 534 (collecting cases).
If a plaintiff alleges "conduct that actually violates the Fourteenth amendment, Title II validly abrogates state sovereign immunity." United States v. Georgia, 546 U.S. 151, 159 (2006) (emphasis in original). In assessing whether a given claim under Title II of the ADA can overcome sovereign immunity, courts must determine: "(1) which aspects of the State's alleged conduct violated Title II; (2) to what extent such misconduct also violated the Fourteenth Amendment; and (3) insofar as such misconduct violated Title II but did not violate the Fourteenth Amendment, whether Congress's purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid." Id. Because the Court finds that no genuine issue of material fact exists as to Marble's claim that Defendants violated Title II, the Court does not engage in the constitutional analysis. See Babcock, 812 F.3d at 539 (explaining that, without having "identif[ied] ADA-violating conduct, [the Sixth Circuit could not] hold that Congress abrogated the states' sovereign immunity by a valid exercise of its power under § 5 of the Fourteenth Amendment").
Invoking its power "to enforce the fourteenth amendment and to regulate commerce," Congress passed the ADA with the aim of protecting people with disabilities from discrimination in three "major areas:" employment (Title I); public services, programs, and activities (Title II); and public accommodations (Title III). 42 U.S.C. §§ 12101(b)(4), 12111-17, 12131-34, 12181-89. Title II provides that:
42 U.S.C.A. § 12132. A "qualified individual with a disability" is one who, "with or without reasonable modifications to rules, policies, or practices, . . . or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." Id. § 12131(2). The term "public entity" extends to "any state or local government" and also "any department, agency, . . . or other instrumentality of a State or . . . local government." Id. § 12131(1)(A)-(B).
Title II represents an expansion of Section 504, which reaches only discrimination in programs or activities that receive federal financial aid. Section 504 provides that:
29 U.S.C. § 794(a). "Apart from [Section 504's] limitation to denials of benefits `solely' by reason of disability and its reach of only federally funded—as opposed to `public'—entities, the reach and requirements of both statutes are precisely the same." S.S. v. E. Ky. Univ., 532 F.3d 445, 452-53 (6th Cir. 2008) (quoting Weixel v. Bd. of Educ. of N.Y., 287 F.3d 138, 146 n.6 (2d Cir. 2002)). That parity extends to enforcement as well—Title II incorporates "[t]he remedies, procedures, and rights set forth in section 794a [of the Rehabilitation Act]. . . ." 42 U.S.C. § 12133. Title II and Section 504 generally recognize three types of discrimination claims: "(1) the defendant intentionally discriminated on the basis of the disability, (2) the defendant refused to provide a reasonable modification,
In his response in opposition to Defendants' motion for summary judgment, Marble distills his claims as follows:
(Doc. No. 99, PageID# 1013.)
Marble does not directly identify his claims as charging intentional discrimination on the basis of disability or a failure to reasonably accommodate his disabilities, and his arguments and those made by Defendants weave between both theories of liability. The Court will therefore address Marble's claims under both theories as well.
To establish "intentional discrimination under Title II of the ADA, [Marble] must show that: (1) [he] has a disability; (2) [he] is otherwise qualified; and (3) [he] was being excluded from participation in, denied the benefits of, or subjected to discrimination under the program because of [his] disability." Anderson v. City of Blue Ash, 798 F.3d 338, 357 (6th Cir. 2015). Discrimination occurs "because of" a plaintiff's disability when there is "sufficiently `significant' evidence" that "animus toward the disabled" motivated the protested behavior. Gohl v. Livonia Pub. Sch. Sch. Dist., 836 F.3d 672, 682 (6th Cir. 2016) (quoting Anderson, 798 F.3d at 357). "The Rehabilitation Act sets the higher bar, requiring plaintiffs to show that the defendant's acts were done `solely by reason of' the disability." Id. (alteration in original) (quoting 29 U.S.C. § 794(a)). For purposes of summary judgment, Defendants assume that Marble is a qualified individual with a disability. (Doc. No. 98, PageID# 840.)
Defendants make a preliminary argument that Marble has not identified a "program" of which he was denied benefits. (Id.) That argument is not persuasive. Title II extends to DCS's efforts to design and implement Marble's permanency plans and to DCS's conduct during the termination proceeding. The scope of Title II's coverage—"services, programs, or activities"— lends itself to a broad reading. 42 U.S.C. § 12132; see Babcock, 812 F.3d at 540 (interpreting the phrase "services, programs, or activities," 42 U.S.C.A. § 12132, "to encompass[] virtually everything that a public entity does") (alteration in original) (quoting Johnson v. City of Saline, 151 F.3d 564, 569 (6th Cir. 2016)); see also Johnson, 151 F.3d at 569 (noting that "the word `activities,' on its face, suggests great breadth and offers little basis to exclude any actions of a public entity."); 28 C.F.R. § 35.102(a) (applying Title II to "all services, programs, and activities provided or made available by public entities"). Because of the breadth of that language, courts have assumed without explicitly deciding that the actions of child welfare agencies are subject to Title II. See Schweitzer v. Crofton, 935 F.Supp.2d 527, 552-56 (E.D.N.Y. 2013); M.K. ex rel. Mrs. K. v. Sergi, 554 F.Supp.2d 175, 182, 194-99 (D. Conn. 2008); Ward v. Murphy, 330 F.Supp.2d 83, 98-99 (D. Conn. 2004). This conclusion is bolstered by the Gordon Letter,
Summary judgment is nonetheless appropriate on this claim, however, because Marble offers no evidence to support a finding that Defendants intentionally discriminated against him because of his disabilities. Marble must present "`significant' evidence of animus toward the disabled that is a but-for cause of the discriminatory behavior." Gohl, 836 F.3d at 682 (quoting Anderson, 798 F.3d at 357). He has not met that substantial burden.
Marble identifies three instances in which he felt discriminatory animus from DCS. Marble testified that he felt that DCS workers "looked at [him] like [he] was downright stupid," and that his disabilities were "part of" the reason that an unidentified DCS worker accused him of "talking derogative in front of [H.S.]" and "stealing a 25-cent vegetable." (Doc. No. 98-2, PageID# 933:14-21, 935:8-11.) Marble testified that those accusations were false and that the DCS staff members were trying to take advantage of the fact that he is "a little slow," "very forgetful," and "not the brightest." (Id. at PageID# 933:14-21, 934:6-22.)
Defendants argue, however, that Marble has not linked that alleged discriminatory animus to any decision leading to the termination of his parental rights or shown that, in fact, his disabilities prevented him from meeting the permanency plan. (Doc. No. 98, PageID# 840.) Defendants argue, citing H.S. I, that Marble's parental rights were terminated because of his failure to support H.S. and his failure to meet the terms of the permanency plan by establishing a suitable residence and demonstrating a legal source of income which, in turn, were not caused by his disabilities.
More importantly, Defendants cite Marble's deposition testimony in which he testified as to the connection between his disabilities and his failure to meet the requirements of the permanency plan. (Doc. No. 98-1, PageID# 851, ¶ 21.) Regarding whether his disabilities prevented him from maintaining stable housing, Marble testified as follows:
(Doc. No. 98-2, PageID# 925-26.)
Marble was also asked about how his disabilities affected the requirement that he maintain employment
(Id. at PageID# 928-29.) Defendants argue that, even if Marble did have disability-related transportation issues (which they dispute),
Marble agrees that "the sole reason for the termination of his parental rights arose from his inability to meet the requirements placed on him by the State agency." (Doc. No. 99, PageID# 1018.) He argues that his failure to meet the plan requirements nonetheless results from discrimination because "DCS intentionally imposed requirements on [him] that were beyond his capabilities allowing them to pursue termination." (Id. at PageID# 1007.) Marble's primary support for this assertion is the affidavit testimony of Dr. Janie L. Berryman "that the disabilities of Mr. Marble were known to DCS in the first meeting held September 5, 2013; that Mr. Marble's disabilities interfered with his ability to get a GED, Mr. Marble otherwise lacked skills, education, and experience to obtain consistent employment; and due to his limitations, the permanency plan was built for Mr. Marble to fail."
Viewed in the context of the whole record, the proof Marble offers is not sufficient to create a genuine issue of material fact that Defendants intentionally discriminated on the basis of his disabilities in creating the permanency plan's requirements. Dr. Berryman's conclusory assertion that "the permanency plan was built for Mr. Marble to fail" is based on an assumption that is unsupported by the record—that DCS, in designing and implementing the permanency plan, knew that Marble's disabilities would prevent him from meeting its terms. In his own deposition testimony, Marble states that he could not remember ever telling DCS that his disabilities would prevent him from complying with the permanency plan (Doc. No. 98-2, PageID# 860:4-8, 862-63, 864-65.) When asked whether, at the time, he believed that his disabilities were preventing him from doing what DCS was asking him to do, Marble responded: "I never really put thought into it." (Id. at PageID# 927:11-13.)
Further, Marble testified that his interactions with Kenyon were largely positive, undermining any inference that discrimination motivated any failure by Kenyon "to account for the known disabilities of Marble" in designing and implementing the permanency plans. (Doc. No. 99, PageID# 1016.) Marble testified that Kenyon helped him "quite a bit" to understand the permanency plan when he was confused and that he knew he could reach out to Kenyon at any time if he had trouble comprehending documents. (Doc. No. 98-2, PageID# 931:11-15, 932:7-14). Marble also testified that Kenyon "has done a pretty good job of treating [him] with the utmost respect." (Id. at PageID# 935:17-19.) Marble's only complaint with respect to Kenyon was that she did not do enough to help him find resources like parenting classes and other services in Michigan, where he was living. (Id. at PageID# 932:15-25, 940:3-22; Doc. No. 99-1, PageID# 1031, ¶ 22.)
More generally, the petition for termination of Marble's parental rights does not evince disability-based animus. The petition sought termination based on Marble's failure to pay child support, failure to comply with the conditions of the permanency plan, and persistence of the conditions that led to H.S.'s removal. (Doc. No. 98-3, PageID# 985-92.) DCS stated the following regarding Marble's failure to meet the conditions of the permanency plan:
(Id. at PageID# 989-90.) As Defendants point out, the grounds for termination in Marble's case did not "rel[y] on assumptions about [the parent's] disabilities that may have prevented appropriate parenting." (Doc. No. 100, PageID# 1139.) Although DCS did reference Marble's mental health assessment in pursuing termination, it did so not to highlight Marble's "cognitive limitations" and their effect on his parenting, but instead to show that he failed to comply with his counselor's recommendations, including participation in individual counseling, involvement in his child's medical care, completion of his GED, and continued pursuit of employment.
To avoid summary judgment on his claim that "DCS intentionally imposed requirements on [him] that were beyond his capabilities allowing them to pursue termination" (Doc. No. 99, PageID# 1013), Marble "cannot rest on [his] pleadings" and instead must "come forward with specific facts demonstrating that there is a genuine issue for trial:" that discrimination caused the harm he asserts. Roberson v. Cendant Travel Srvs., Inc., 252 F.Supp.2d 573, 576 (M.D. Tenn. 2002) (internal citations omitted). Marble has not offered sufficient proof to meet that burden, and, from the evidence in the record, a reasonable jury could not conclude that Defendants violated the ADA and Section 504 by "intentionally impos[ing] requirements on Marble that were beyond his capabilities" so that it could "pursue termination." (Doc. No. 99, PageID# 1013.) Defendants are entitled to summary judgment with respect to Marble's claim of intentional discrimination.
To succeed on a claim that Defendants failed to provide reasonable accommodation for Marble's disabilities in creating the permanency plan, as Marble alleges, he must show that Defendants "could have reasonably accommodated [him] and refused to do so." McNamara v. Ohio Bldg. Auth., 697 F.Supp.2d 820, 828 (N.D. Ohio 2010) (quoting McPherson, 64 F.3d at 461). To meet that standard, a plaintiff must generally establish as a first step that he requested a reasonable accommodation. Gantt v. Wilson Sporting Goods Co, 143 F.3d 1042, 1047 (6th Cir. 1998).
In the context of Title III, the Supreme Court has held that, when an accommodation has been requested, an "individualized inquiry must be made to determine whether a specific modification for a particular person's disability would be reasonable under the circumstances . . ." PGA Tour, Inc. v. Martin, 532 U.S. 661, 688 (2001). Courts have applied the individualized inquiry requirement in Title II cases. Wright v. N.Y. State Dep't of Corr., 831 F.3d 64, 77 (2d Cir. 2016) (collecting cases and noting that such an extension is consistent with Title II's implementing regulations). Yet a failure to make an individualized inquiry is not necessarily an independent violation of the ADA; the Sixth Circuit has held that, in the context of employment discrimination actions, a failure to conduct an individualized inquiry "is only an independent violation of the ADA if the plaintiff establishes a prima facie showing that he proposed a reasonable accommodation," Rorrer v. City of Stow, 743 F.3d 1025, 1041 (6th Cir. 2014), or "that a reasonable accommodation was possible." Keith v. County of Oakland, 703 F.3d 918, 929 (6th Cir. 2013). Conditioning the individualized inquiry requirement on a showing that a reasonable accommodation was within reach recognizes that such an inquiry is "a means and not an end in itself," Rehling v. City of Chicago, 207 F.3d 1009, 1016 (7th Cir. 2000), and ensures that defendants are not held liable when "there was no possible way . . . to accommodate the [plaintiff's] disability." Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir. 1997).
The only accommodation that Marble explicitly references in his summary judgment briefing is placement of H.S. with the DuBoises.
Marble's reasonable accommodation claims fail, however, because the evidence in the record, even when viewed in the light most favorable to Marble, does not establish that he ever requested accommodation for his disabilities. In his deposition, Marble was asked whether he had notified DCS that any of his disabilities were preventing him from complying with the terms of the permanency plan and testified as follows:
(Doc. No. 98-2, PageID# 860:4-8, 862-63, 864-65.) Marble was also asked if he had ever requested an accommodation for his disabilities:
(Id. at PageID# 927:8-13.) Defendants argue that Marble's testimony establishes that he never requested an accommodation or informed DCS that his disabilities were preventing him from complying with the terms of the permanency plan. (Doc. No. 98-1, PageID# 848-49, ¶¶ 7, 9, 11.) Marble counters that his testimony reveals only that he does not remember communicating with DCS about those topics (Doc. No. 99-1, PageID# 1024-25, ¶¶ 7, 9, 11) and points out that, at the outset of his deposition, he stated:
(Doc. No. 98-2, PageID# 856:17-22.)
The Court does not take lightly the fact that Marble experiences memory failures because of his seizure disorder and recognizes the difficulties that Marble has testified that this has caused in the pursuit of his claims. However, Marble cannot substantiate his claims based on the absence of evidence. "[T]he initial burden of requesting an accommodation under the ADA rests with [him]." Watson v. City of Mason, No. C-1-04-283, 2005 WL 3018690, at *5 (S.D. Ohio Nov. 9, 2005) (citing Gantt, 143 F.3d at 1046-47 n.4). Marble has established that DCS was aware of his disabilities (Doc. No. 100-1, PageID# 1146, ¶ 16), but not that he ever requested an accommodation or even informed DCS that his disabilities would prevent him from being able to do what the permanency plan required. DCS's mere knowledge of his disabilities is not sufficient to support his claim. See Watson, 2005 WL 3018690, at *5 (explaining that, "[w]hile Plaintiff may have generally discussed her disability with court personnel, she did not inform anyone with the City that she had problems navigating stairs as a result of her disability"). In the complete absence of proof that Marble ever requested an accommodation of his disabilities, Defendants are entitled to summary judgment on Marble's claims.
Even if that were not the case, Marble's failure-to-accommodate claim based on DCS's alleged refusal to place H.S. with the DuBoises fails for an independent reason—the accommodation of a relative placement ceased to be reasonable after DCS was blocked from implementing it by the juvenile court. Marble claims that "DCS refused to consider [his] extended family and their willingness to do whatever was necessary to help" and that "DCS refused to transfer H.S. to Marble's aunt and uncle which would have maintained the integrity of the family." (Doc. No. 99, PageID# 1013.) That was so despite the fact that the DuBoises "completed all the requirements, including the [ICPC] . . ." (Id. at PageID# 1006.) Defendants assert that, once the ICPC was completed,
Nonetheless, Marble faults Defendants for the failure to place H.S. with the DuBoises and not the courts that found that such a placement would not have been in H.S.'s best interests. Marble argues that "initial determinations respecting [residential] placements [of children] are the responsibility and prerogative of [DCS]" and therefore DCS did not need the permission of the trial court to place H.S. with the DuBoises. (Doc. No. 99, PageID# 1014-15 n.3) (citing State of Tenn., Dep't of Children's Servs. v. E.G.P., No. E2003-00433-COA-R3-CV, 2003 WL 22134896, *3 (Tenn. Ct. App. Sept. 12, 2003).) To support that assertion, Marble cites Tennessee Code Annotated § 37-1-129(e)(1) which provides:
Tenn. Code Ann. § 37-1-129(e)(1) (amended in 2017).
In their supplemental brief, Defendants respond that Marble cannot establish that the duty to keep H.S. in the family "exists in the face of a facially valid court order from the Tennessee court prohibiting placement of the child out-of-state." (Doc. No. 130, PageID# 1395.) Defendants argue that, even if the court's denial of DCS's motion to place H.S. with the DuBoises was mistaken, "the proper avenue to dispute the decision was an appeal" and that DCS should not have been expected to "flout[] the order and risk[] contempt of court." (Id.) Marble did appeal that decision, but argued only that "the court erred in not placing [H.S.] in [the custody of the DuBoises]," and not that the court's order was non-binding with respect to DCS. H.S. II, 2016 WL 7048840, at *9. His appeal was not successful.
Marble has failed to show that placing H.S. with the DuBoises after DCS's initial attempts to do so were denied by the Tennessee courts remained a reasonable accommodation. The question of Tennessee law that Marble has raised about whether that court was wrong to order, rather than recommend, that H.S. not be placed with the DuBoises (Doc. No. 129, PageID# 1388), is not material to the ADA analysis of whether a relative placement was a reasonable accommodation despite the juvenile court's order blocking it.
To the extent that Marble argues as a separate claim that DCS's failure to conduct an individualized inquiry violates the ADA and Section 504, that claim also fails. The parties debate whether DCS conducted an individualized inquiry into the effect of Marble's disabilities on his compliance with the permanency plan. Defendants state that "Marble's [permanency] plan was directly tailored to his abilities and the child's needs" and was created "by sitting down with the parent and assessing that particular parent-child relationship and what is needed for the child to safely and securely reunite with the parent." (Doc. No. 98, PageID# 842-43.) Marble responds
Marble has failed to "come forward with specific facts demonstrating that there is a genuine issue for trial" on this claim. Roberson, 252 F. Supp. 2d at 576. Again, the dispute about whether DCS made an individualized inquiry into the relationship between Marble's disabilities and the terms of the permanency plan is not material to Defendants' liability where Marble has pointed to nothing in the record indicating that he ever requested a reasonable accommodation from DCS or that such an accommodation was otherwise possible. See Rorrer, 743 F.3d at 1041; see also Keith, 703 F.3d at 929. Defendants are entitled to summary judgment on all aspects of Marble's reasonable accommodation claim.
For the foregoing reasons, Defendants' motion for summary judgment will be granted and this action will be dismissed with prejudice. A separate order will enter.
There is no need to determine whether DuBoise's statement is admissible, because, without more argument from Marble, the Court cannot conclude that any dispute about the existence of a delay in the ICPC process is material to the question of whether DCS "could have reasonably accommodated [Marble] and refused to do so." McNamara, 697 F. Supp. 2d at 828. Marble makes no effort to connect the delay in commencement of the ICPC process to the ultimate denial of the relative placement, though the implication of his reference to the delay is that an earlier start would have produced a different outcome in the state courts. The fact that the circuit court focused on the passage of time in affirming the denial of the relative placement lends some support to Marble's implied argument, but that support is undermined by the presence of other delays that were outside of DCS's control, such as the failure of the DuBoises to include their foster license in their initial ICPC application (Doc. No. 99-2, PageID# 1034, ¶ 6; Doc. No. 100-1, PageID# 1144, ¶ 6) and the length of the trial itself. See H.S. II, 2016 WL 7048840, *4, 6. Further, there is reason to question whether an earlier start to the ICPC process would have been reasonable—in state court, Kenyon testified that "she did not immediately begin the ICPC process because the initial goal was to return the Child to Mother if possible, despite the requirement to maintain a concurrent goal of . . . exit custody to relative as a result of the nature of the case." H.S. I, 2016 WL 3209444, at *3. Felicia Harris testified that "they initiated the ICPC process when Mother failed to achieve stability." Id. Their testimony is consistent with Marble's concession that a relative placement was an "alternate" or "secondary" goal of the permanency plan (Doc. No. 88, PageID# 763, ¶ 48a; Doc. No. 99, PageID# 1014) and that, during the fall of 2013, it was Marble's understanding "that DCS intended to reunite the child with the child's mother and that he would be able to set up visitation or otherwise provide care for his child after this matter had been resolved." (Doc. No. 88, PageID# 766, ¶ 50.)
However, the Court does note that the TCA dependency and neglect opinion reflects that, at the conclusion of the trial in circuit court, Kenyon no longer supported placing H.S. with the DuBoises and instead believed that "it was in [H.S.'s] best interest to remain with Foster Parents." H.S. II, 2016 WL 7048840, at *5. "Ms. Kenyon opined that [H.S.] would be traumatized if she were removed." Id. Further, DCS "noted that [H.S.] was well cared for and happy with Foster Parents, who were financially secure and willing to adopt [H.S.] if that proved to be an option." Id. In the absence of any argument from Marble explaining why DCS's change of position was wrong, and therefore that a relative placement was still a reasonable accommodation (despite concerns about H.S.'s well-being), the Court cannot find that Marble has established that there is a material factual dispute about whether DCS refused to reasonably accommodate him.
