The opinion of the court was delivered by: Judge Conner
This action arises from alleged employment discrimination, in violation of Title I and Title II of the Americans with Disabilities Act ("ADA"), by defendant Pennsylvania State Police ("State Police") and its Commissioner, defendant Colonel Jeffrey B. Miller. Before the court are motions to dismiss, one filed by the State Police, one filed by Colonel Miller. The State Police argues that the Eleventh Amendment precludes subject matter jurisdiction over the claims filed against it. Colonel Miller argues that Title II does not provide a cause of action for employment discrimination, thus plaintiffs fail to state a claim under that Title.
The issues presented are: 1) whether the State Police may be sued in this action and 2) whether a claim of employment discrimination is cognizable under Title II. For the reasons that follow, the court answers the first in the affirmative and the second in the negative.
I. Statement of Facts*fn1
As Commissioner of the State Police, Colonel Miller is responsible for establishing rules and regulations deemed necessary for the safe and efficient operation of the State Police. Plaintiffs challenge the continued enforcement of Field Regulation 2-2.11(a)*fn2 and Administrative Regulation 4-5.07. The amended complaint indicates that both regulations contain the same text. For purposes of this memorandum, the court will refer to Field Regulation 2-2.11(a) because it is quoted in the amended complaint. It states, in pertinent part:
Members who know that they will be unable to report for duty due to illness or injury they incurred while off duty shall immediately notify their supervisor (or ensure such notification) of the nature of the injury or illness, where they will be recuperating, and the expected date of return of duty.
A state trooper who does not voluntarily disclose the reason for his or her absence under the sick leave policy will be questioned by an appropriate supervisor. If a trooper does not provide the reason for requested sick leave, the trooper is subject to denial of leave and possible disciplinary action including dismissal from service. State troopers have disclosed, and continue to disclose, the reasons for their illness or injury sick leave requests pursuant to Field Regulation 2-2.11(a).
Plaintiff Bruce A. Edwards, President of plaintiff Pennsylvania State Troopers Association, requested that the State Police cease enforcing the sick leave policy to the extent that the disclosure requirement is not job-related and consistent with business necessity. Colonel Miller denied plaintiff Edwards's request. On May 16, 2005, plaintiffs filed an employment discrimination charge with the Equal Opportunity Commission alleging that defendants' continued enforcement of the Field Regulation violates Title I of the ADA. Plaintiffs were issued a right to sue letter on February 24, 2006; their administrative remedies under Title I are exhausted.
Plaintiffs initiated suit in this court on May 26, 2006. (Doc. 1.) They filed an amended complaint on August 22, 2006, stating claims against the State Police and against Colonel Miller in his individual and official capacities. (Doc. 7.) They allege that enforcing Field Regulation 2-2.11(a) violates Title I, 42 U.S.C. §§ 12111-12117, and Part A of Title II, §§ 12131-12134, of the ADA by authorizing inquiry into whether a state trooper requesting sick leave is an individual with a disability. Plaintiffs seek a declaration that Field Regulation 2-2.11(a) violates the ADA and an injunction prohibiting defendants from enforcing the regulation, along with attorneys' fees and costs of litigation.
Defendant State Police filed a motion to dismiss the amended complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) (Doc. 10), arguing that the State Police may not be sued in federal court by virtue of Eleventh Amendment sovereign immunity. Defendant Miller filed a motion to dismiss the Title II cause of action for failure to state a claim under Federal Rule 12(b)(6). (Doc. 21.) He argues that Title II does not provide a cause of action for employment discrimination. Both motions have been briefed and are ripe for disposition.
A. Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(1)
A motion to dismiss under Rule 12(b)(1) challenges the power of a federal court to hear a claim or case. Ordinarily, the plaintiff bears the burden of proving that federal subject matter jurisdiction is proper. Gould Elecs. Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000). When jurisdiction is challenged on Eleventh Amendment sovereign immunity grounds, however, the burden shifts to the moving party to prove that federal subject matter jurisdiction does not exist. Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 694 (3d Cir. 1996). It is incumbent upon a federal court to "evaluate for itself the merits of the jurisdictional claims." Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (quoting Mortensen v. First. Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)).
Motions filed under 12(b)(1) fall into one of two categories. The first type challenges subject matter jurisdiction based on the allegations in the complaint in a "facial attack." Mortensen, 549 F.2d at 891. A facial attack asserts that the plaintiff has failed to properly allege federal subject matter jurisdiction. Id. Upon facial attack, a plaintiff's allegations are accepted as true. Cohen v. Kurtzman, 45 F. Supp. 2d 423, 428 (D.N.J. 1999). The second type of 12(b)(1) motion challenges the factual basis for federal subject matter jurisdiction. Mortensen, 549 F.2d at 891. Upon factual attack, the plaintiff's allegations are not ...