Regina McCormick v. Miami University

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0317p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

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Plaintiff-Appellant, -
REGINA ANN MCCORMICK,
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No. 11-3614
v.
,
>
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MIAMI UNIVERSITY; KAREN MAITLAND
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SCHILLING, Dean; TERRI MESSMAN-MOORE;
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MARGARET WRIGHT,
Defendants-Appellees. N
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 1:10-cv-345—Susan J. Dlott, Chief District Judge.
Argued: June 5, 2012
Decided and Filed: September 10, 2012
Before: KEITH, McKEAGUE, and DONALD, Circuit Judges.

_________________

COUNSEL
ARGUED: Dianna M. Anelli, ANELLI HOLFORD, LTD., Dublin, Ohio, for Appellant.
Kathleen M. Trafford, PORTER, WRIGHT, MORRIS & ARTHUR LLP, Columbus,
Ohio, for Appellees ON BRIEF: Dianna M. Anelli, ANELLI HOLFORD, LTD.,
Dublin, Ohio, for Appellant. Kathleen M. Trafford, Tracie N. Ransom, PORTER,
WRIGHT, MORRIS & ARTHUR LLP, Columbus, Ohio, for Appellees.
_________________

OPINION
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DAMON J. KEITH, Circuit Judge. Regina McCormick was pursuing a graduate
degree in psychology at Miami University in Ohio when she was diagnosed with several
illnesses that slowed her progress in her graduate studies. After the faculty voted against
promoting McCormick to doctoral status, she filed suit against the university and its

1
No. 11-3614 McCormick v. Miami Univ., et al. Page 2

officials, alleging discrimination on the basis of race and disability in violation of
state and federal laws. To circumvent the expired two-year statute of limitations for a
42 U.S.C. § 1983 claim—which provides an express cause of action against state
actors—McCormick asserted federal claims for racial discrimination and retaliation
under 42 U.S.C. § 1981. The district court granted the defendants’ motion to dismiss all
claims, concluding that McCormick’s discrimination claim under § 1981 was barred
because § 1983 provided the exclusive means to bring a damages suit against state actors
in either their official or individual capacities for violations of § 1981. The district court
dismissed McCormick’s Rehabilitation Act and Americans with Disabilities Act (ADA)
claims as time-barred. On appeal, McCormick argues that the district court improperly
extended the Supreme Court’s holding in Jett v. Dallas Independent School District,
491 U.S. 701 (1989), to bar using §1981 as a mechanism to sue state actors in their
individual capacities. This court has not squarely addressed whether § 1983 provides
the exclusive means to sue a state actor acting in their individual capacity for alleged
violations of § 1981. Upon due consideration, we AFFIRM the judgment of the district
court.

I.

Miami University’s Psychology Department admitted McCormick into its
graduate program for the fall semester of 2000. During her second year of study, in
2002, McCormick was diagnosed with plica syndrome, knee and wrist dysfunction,
degenerative disc disease, and rheumatoid arthritis. McCormick alleges that her
illnesses and treatment drastically slowed her progress in her graduate studies by
impairing major life functions such as walking and utilizing her arms and hands.
McCormick reported her condition to her advisor and Dean of the Psychology
Department, Dr. Karen Schilling. She also requested reasonable accommodations in the
form of additional time within which to complete her PhD.

McCormick further alleged that when her health problems began in 2001,
Defendant-Appellee Dr. Terri Messman-Moore agreed to give McCormick a C+ grade
in a course to serve as a place holder, allowing McCormick to receive financial aid with
No. 11-3614 McCormick v. Miami Univ., et al. Page 3

the understanding that the course work would be completed at a later time. However,
Dr. Messman-Moore allegedly reneged and required McCormick to retake the class in
its entirety.

In January 2003, McCormick received a letter from Dr. Len Mark, on behalf of
the psychology faculty, informing her that despite receiving two Cs—which would
normally be grounds for dismissal—the faculty would allow her to continue her studies.
The letter warned that promotion to doctoral status was unlikely unless she made
dramatic improvement in the quality of her work. The letter established time limits
within which to complete certain tasks. During the same month, McCormick was
diagnosed with an arthritis-related condition in her left wrist that required surgery.
McCormick opted to undergo surgery at a future date. She informed Dr. Schilling of her
condition and requested additional time within which to complete her assignments.

On May 7, 2003, Dr. Mark wrote another letter to McCormick on behalf of the
faculty, expressing disappointment that McCormick was unable to complete her tasks
in accordance with the time limits set forth in the January 2003 letter. The letter further
warned that, without dramatic improvement, the likelihood of the faculty supporting her
promotion to doctoral status was even less than in January 2003.

After receiving the May 2003 letter, McCormick earned a 4.0 grade point
average for several semesters. Upon completing the coursework for her master’s degree,
McCormick earned a cumulative GPA of 3.72. She successfully defended her master’s
thesis and received an A grade.

On April 28, 2006, in a seven to three vote, the faculty declined to promote
McCormick to doctoral status. McCormick alleged that the faculty denied her promotion
because she would take too long to complete the dissertation; however, the termination
letter that McCormick received did not state a reason for the faculty’s decision. After
the faculty vote, McCormick’s brother telephoned Dr. Schilling, who allegedly discussed
with him the pervasiveness of racism within the Psychology Department.
No. 11-3614 McCormick v. Miami Univ., et al. Page 4

On May 5, 2010, McCormick filed a complaint in federal court alleging that
Defendants-Appellees engaged in: (1) disability discrimination in violation of the
American with Disabilities Act (ADA), 42 U.S.C. § 12131, Ohio Revised Code
§§ 4112.02, 4112.99, and the Rehabilitation Act, 29 U.S.C. § 794; (2) race
discrimination in violation of 42 U.S.C. § 1981 and Ohio Revised Code § 4112.99;
(3) retaliation in violation of 42 U.S.C. § 1981 and Ohio Revised Code §§ 4112.02,
4112.99; (4) breach of express contract; and (5) breach of public policy. McCormick
alleged that the foregoing violations resulted from the Defendants-Appellees’ decision
not to advance McCormick to doctoral status. McCormick sued the three named faculty
members in their individual and official capacities. Defendants-Appellees filed a motion
to dismiss on June 6, 2010. On May 5, 2011, the district court entered an order granting
the motion to dismiss all claims pursuant to either Federal Rule of Civil Procedure
12(b)(1) for lack of jurisdiction, or Rule 12(b)(6) for lack failure to state a claim upon
which relief can be granted. The district court concluded that McCormick’s
discrimination and retaliation claims under 42 U.S.C. § 1981 failed as a matter of law
because such claims cannot be brought under § 1981 against state actors in either an
official capacity or an individual capacity. The district court also concluded that the
discrimination claims based on the ADA and the Rehabilitation Act were time-barred
and that it lacked jurisdiction to hear the state law claims. McCormick filed a timely
appeal.

II.

We discuss each of McCormick’s claims in turn. McCormick sued Miami
University and three of its faculty members, both in their individual and official
capacities, for alleged violations of state and federal law. McCormick’s
complaint sought both injunctive relief and money damages. We respectively organize
McCormick’s claims into those brought under § 1981, the Rehabilitation Act, the ADA,
and state laws.
No. 11-3614 McCormick v. Miami Univ., et al. Page 5

Standard of Review

We review de novo a district court’s dismissal of a complaint pursuant to Federal
Rule of Civil Procedure 12(b)(1), Lovely v. United States, 570 F.3d 778, 781 (6th Cir.
2009), and Rule 12(b)(6), Kottmyer v. Maas, 436 F.3d 684, 688 (6th Cir. 2006).

A plaintiff must provide only “a short and plain statement of the claim showing
that the pleader is entitled to relief, in order to give the defendant fair notice of what the
claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007) (internal quotation marks omitted); Fed. R. Civ. P. 8(a)(2). A complaint
can survive a Rule 12(b)(6) motion to dismiss without having detailed factual
allegations, but the complaint must contain more than conclusions and an
unsubstantiated recitation of the necessary elements of a claim. Id. We assume the
veracity of well-pleaded factual allegations and determine whether the plaintiff is
entitled to legal relief as a matter of law. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009);
Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993).

Challenges to subject-matter jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(1) are categorized as either a facial attack or a factual attack. “Under
a facial attack, all of the allegations in the complaint must be taken as true . . . . Under
a factual attack, however, the court can actually weigh evidence to confirm the existence
of the factual predicates for subject-matter jurisdiction.” Carrier Corp. v. Outokumpu
Oyj, 673 F.3d 430, 440 (6th Cir. 2012).

Section 1981 Claims

§ 1981 Claims Against State Actors Sued in their Individual Capacity

The foremost issue presented in this appeal is whether § 1983’s express cause of
action against state actors precludes using § 1981 as a mechanism to sue state actors for
money damages in their individual capacity. In Jett v. Dallas Independent School
District, the Supreme Court resolved a similar issue regarding § 1981 suits against local
governmental units. 491 U.S. 701. The Jett Court held that §1983 provided the
exclusive federal damages remedy for a claim against a state actor accused of violating
No. 11-3614 McCormick v. Miami Univ., et al. Page 6

rights secured by §1981. Id. at 735. McCormick claims that the holding in Jett is
limited to suits against government entities and individuals sued for money damages in
their official capacity. The district court concluded that a state employee cannot be sued
in their individual capacity directly under § 1981, reasoning that “it would be illogical
to conclude that Jett would bar plaintiffs from suing governmental units and state actors
in their official capacities directly under § 1981, but not bar such claims against
individuals who otherwise qualify as state actors but are sued in their individual
capacities.” R. 20, Dist. Ct. Order at 20-21.

Jett involved a §1981 and §1983 claim against the Dallas Independent School
District (DISD) and a high school principal, in his personal and official capacity, for
alleged violations of due process, the First Amendment, and equal protection. Id. at 707-
08. Norman Jett, a white male, was head football coach and athletic director at a
predominantly black high school. Id. at 705. Jett clashed repeatedly with the black high
school principal, Dr. Frederick Todd, who successfully recommended that Jett be
removed as head coach and athletic director. Id. at 705-06. At trial, Jett prevailed
against Todd and DISD on all counts. Id. at 707. Todd ultimately settled with Jett,
leaving DISD as the remaining defendant on appeal. Id. at 708.1

Section 1981 prohibits racial discrimination in the making and enforcement of
contracts. See Runyon v. McCrary, 427 U.S. 160, 168 (1976). At the time Jett was
decided, 42 U.S.C. § 1981 provided:

All persons within the jurisdiction of the United States shall have the
same right in every State and Territory to make and enforce contracts, to
sue, be parties, give evidence, and to the full and equal benefit of all laws
and proceedings for the security of persons and property as is enjoyed by
white citizens, and shall be subject to like punishment, pains, penalties,
taxes, licenses, and exactions of every kind, and no other.

Section 1983 has not been amended since the holding in Jett and provides:

Every person who, under color of any statute, ordinance, regulation,

1
Because Todd settled with plaintiffs before the appeal, the Court did not squarely address § 1981
liability of state actors acting in their individual capacity.
No. 11-3614 McCormick v. Miami Univ., et al. Page 7

custom, or usage, of any State . . . subjects, or causes to be subjected, any
citizen of the United States . . . to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other
proper proceeding for redress . . . .

In a plurality opinion,2 the Supreme Court conducted a detailed comparative
examination of the legislative history surrounding the adoption of the Civil Rights Act
of 1866—the precursor to §1981—and the Act of April 20, 1871, ch. 22, 17 Stat.
13—the precursor to § 1983. The legislative history of § 1981 revealed that the Civil
Rights Act of 1866: (1) did not provide for an express damages remedy for its violation;
(2) did not create original federal jurisdiction to support a federal damages remedy
against state actors; and (3) was designed to punish the “person who, under the color of
the law, [did] the act, not the community where the custom prevails.” Jett, 491 U.S. at
720-21 (internal quotation marks omitted). Upon examining the history of § 1983, the
plurality noted that §1983: (1) expressly provided that a person acting under color of
state law who was responsible for a deprivation of constitutional rights would “be liable
to the party injured in any action at law”; (2) explicitly provided original federal
jurisdiction for prosecution of such civil actions; and (3) was perceived by both
opponents and proponents as amending and enhancing the protections of the 1866 Act
by providing a new civil remedy for its enforcement against state actors. Id. at 723-24.

Through a comparative analysis of the respective histories of § 1981 and § 1983,
the Court concluded that “the history of the 1866 Act and the 1871 Act . . . indicates that
Congress intended that the explicit remedial provisions of § 1983 be controlling in the
context of damages actions brought against state actors alleging violation of the rights
declared in § 1981.” Id. at 731. The plurality noted that strong evidence from the
legislative history suggests that the Congress that enacted the precursor to § 1983
believed it was enacting the first and only federal damages remedy for the violation of
federal constitutional and statutory rights by state governmental actors. Id. at 734.

2
Justice O’Connor announced the judgment of the Court and wrote the opinion of the Court
except the parts relying on legislative history. Justice Scalia wrote a concurrence indicating that he joined
the opinion except insofar as it relies upon legislative history. Jett, 491 U.S. at 738-39 (Scalia, J.,
concurring).
No. 11-3614 McCormick v. Miami Univ., et al. Page 8

Moreover, the Court reasoned that it had created an implied right of action under § 1981
against private actors partly because there was no other remedy to address the violations
of § 1981. Id. at 731-32. However, as the Court observed, “[t]hat is manifestly not the
case” as it relates to constitutional and statutory violations committed by state actors.
Id. at 732. Congress has established its own remedial scheme, through § 1983, to
address state actors who violate the law. Id. at 733. As such, the Court declined to
imply a damages remedy under § 1981 in the context of state actors. Id. at 731.

After the Jett decision, Congress amended § 1981 by passing the Civil Rights Act
of 1991. In relevant part, the 1991 Act added subsection c, which provides:

(c) Protection against impairment
The rights protected by this section are protected against impairment by
nongovernmental discrimination and impairment under color of State
law.

42 U.S.C. § 1981(c). Since the amendment to § 1981, circuit courts have split as to
whether the 1991 amendment created a new private cause of action, thereby overruling
Jett. The Sixth Circuit has continued to hold that Jett remains binding authority and that
“the express cause of action for damages created by §1983 constitutes the exclusive
federal remedy for violation of the rights guaranteed in § 1981 by state governmental
units.” Arendale v. City of Memphis, 519 F.3d 587, 598-99 (6th Cir. 2008) (quoting Jett,
491 U.S. at 733). Our decision in Arendale is consistent with authorities in the Third
Circuit, see McGovern v. City of Philadelphia, 554 F.3d 114, 117-18 (3d Cir. 2009); the
Tenth Circuit, see Bolden v. City of Topeka, 441 F.3d 1129, 1137 (10th Cir. 2006); the
Fifth Circuit, see Oden v. Oktibbeha Cnty., 246 F.3d 458, 463-64 (5th Cir. 2001); the
Eleventh Circuit, see Butts v. Cnty. of Volusia, 222 F.3d 891, 894 (11th Cir. 2000); and
the Fourth Circuit, see Dennis v. Cnty. of Fairfax, 55 F.3d 151, 156 n.1 (4th Cir. 1995).
In contrast, the Ninth Circuit has expressly held that the Civil Rights Act of 1991 has
overruled the Supreme Court’s holding in Jett. See Fed’n of African Am. Contractors
v. City of Oakland, 96 F.3d 1204, 1205 (9th Cir. 1996) (“We hold that the Civil Rights
Act of 1991 creates an implied cause of action against state actors under 42 U.S.C.
§ 1981, and thus statutorily overrules Jett’s holding that 42 U.S.C. § 1983 provides the
No. 11-3614 McCormick v. Miami Univ., et al. Page 9

exclusive federal remedy against municipalities for violation of the civil rights
guaranteed by 42 U.S.C. § 1981.”); but see Pittman v. Oregon, 509 F.3d 1065, 1074
(9th Cir. 2007) (holding that § 1981 does not contain a cause of action against arms of
the state).

Using the reasoning of Jett, this circuit has held that a plaintiff cannot use § 1981
to sue a state actor in his or her official capacity. Grinter v. Knight, 532 F.3d 567, 577
(6th Cir. 2008) (Ҥ 1983 provides an exclusive remedy for violations against state actors
sued in their official capacities. An official capacity lawsuit against . . . a state actor[]
for constitutional violations, such as race discrimination, cannot be brought under
§ 1981.”). The district court correctly dismissed the § 1981 claims against the individual
defendants in their official capacity. However, we have not addressed whether Jett bars
a § 1981 claim against an individual state actor sued in his or her individual capacity.
We now hold that it does.

The reasoning of Jett is equally applicable to § 1981 suits against state actors
sued in their individual capacity. In reaching its holding, a plurality of the Court relied
on the legislative history of § 1981. The plurality observed that prior to § 1983, there
was no legislation that provided a federal damages remedy against state actors who
violated the law. The Congress that enacted the precursor to § 1983 believed that it was
enacting the first and only federal damages remedy against state actors. The Court
refused to imply a private right of action under § 1981 in the context of state action—as
it had for private action—because unlike in the context of private action, the more
specific and express cause of action contained in §1983 provided a mechanism to
address a violation of §1981. The Court’s logic would naturally extend to the context
of individual state actors sued in their individual capacity. Whether the violation of
§1981 is committed by a municipality through its policies or custom, or individuals
acting under the color of state law, §1983 contains an express clause permitting an
aggrieved person to sue the state actor for money damages. Section 1983’s express
clause permitting these suits obviates the need to imply the same right under the general
provisions of § 1981. Accordingly, we conclude that § 1983 is the exclusive mechanism
No. 11-3614 McCormick v. Miami Univ., et al. Page 10

to vindicate violations of § 1981 by an individual state actor acting in his individual
capacity.3 We therefore AFFIRM the district court’s dismissal of the § 1981 claims
against the individual defendants acting in their individual capacity.

Claims against Miami University

The appellant’s § 1981 claims against Miami University are barred by the
Eleventh Amendment.

The Eleventh Amendment provides:

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 of Subjects of
any Foreign State.

U.S. Const. amend. XI. Eleventh Amendment immunity “bars all suits, whether for
injunctive, declaratory or monetary relief, against the state and its departments, by
citizens of another state, foreigners or its own citizens.” Thiokol Corp. v. Dep’t of
Treasury, 987 F.2d 376, 381 (6th Cir. 1993) (internal citations omitted). Miami
University is a public university in the state of Ohio. See Ohio Rev. Code § 3339. Since
a public university qualifies as an arm of the state, see Johnson v. Univ. of Cincinnati,
215 F.3d 561, 571 (6th Cir. 2000) (applying Eleventh Amendment immunity to a state
university as an arm of the state), Miami University “is immune from suit under the
Eleventh Amendment because it is well-settled that a plaintiff is precluded from directly
suing a State in federal court,” id. Accordingly, the district court properly dismissed
McCormick’s claims against Miami University.

Insofar as McCormick is suing Schilling, Messman-Moore, and Wright in their
official capacities for money damages, her claim is also barred by the Eleventh

3
Along with the district court, we recognize that in adopting this conclusion, there may be cases
in which a plaintiff seeks to hold a state employee liable for § 1981 violations unrelated to the defendant’s
status as a state employee. Section 1983, however, only permits suits against state actors—i.e. defendants
who have exercised power possessed by virtue of state law and made possible only because they were
clothed with the authority of state law. West v. Atkins, 487 U.S. 42, 49 (1988). If the defendant’s alleged
infringement of § 1981 is not fairly attributable to the state, nothing in our holding bars a plaintiff from
bringing suit against the defendant under § 1981 as a private actor. This was certainly not the case here
because all three faculty members’ alleged misconduct was related to their status as state employees.
No. 11-3614 McCormick v. Miami Univ., et al. Page 11

Amendment. Will v. Mich. Dept. of State Police, 491 U.S. 58, 71 (1989) (“[A] suit
against a state official in his or her official capacity is not a suit against the official but
rather is a suit against the official’s office. As such, it is no different from a suit against
the State itself.”) (internal citations omitted). However, the Eleventh Amendment does
not preclude a suit against the Defendants-Appellees for prospective injunctive relief.
McKay v. Thompson, 226 F.3d 752, 757 (6th Cir. 2000).

Rehabilitation Act Claims

McCormick argues that the district court erred in dismissing her Rehabilitation
Act claims as time-barred based on a two-year statute of limitations. McCormick’s
Rehabilitation Act claims arise from her allegation that Defendants-Appellees’ decision
not to promote her was solely because of her disability, and thus prohibited by Section
504 of the Rehabilitation Act, 29 U.S.C. § 794. McCormick’s complaint was filed on
April 23, 2010, four years after the faculty voted against her promotion to doctoral
status. McCormick argues that her Rehabilitation Act claim is governed by a four-year
statute of limitations.

Where a federal statute provides a cause of action but does not specify a
limitations period, courts determine the appropriate statute of limitations in one of two
ways. First, if the federal cause of action arises under an Act of Congress enacted after
December 1, 1990, it is governed by 28 U.S.C. § 1658, which prescribes a four-year
statute of limitations period. Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382
(2004). Alternatively, courts borrow the most analogous state limitations period, so long
as the application of state law is not “at odds with the purpose or operation of federal
substantive law.” North Star Steel Co. v. Thomas, 515 U.S. 29, 34 (1995) (internal
quotation marks and citations omitted).

Since the Rehabilitation Act does not specify a statute of limitations, we look to
the most analogous state law and adopt its limitations period. We have held that the
applicable statute of limitations for Rehabilitation Act claims brought in Ohio is two
years, consistent with the personal injury statute provided in Ohio Revised Code
§ 2305.10. See Bishop v. Children’s Ctr. for Developmental Enrichment, 618 F.3d 533,
No. 11-3614 McCormick v. Miami Univ., et al. Page 12

536 (6th Cir. 2010); see also James v. Upper Arlington City Sch. Dist., 228 F.3d 764,
769 (6th Cir. 2000) (citing Southerland v. Hardaway Mgmt. Co., 41 F.3d 250, 254
(6th Cir. 1994)). The reason for applying a two-year statute of limitation stems from our
decision in Southerland, where we determined the appropriate statute of limitations for
section 504 claims brought in Kentucky. We acknowledged that claims brought under
section 504 of the Rehabilitation Act are closely analogous to § 1983 claims in that both
statutes “are civil rights acts that protect persons in the United States from tortlike
injuries.” Southerland, 41 F.3d at 254. As such, courts similarly apply the state statute
of limitations for personal injury claims to section 504 claims. Id. at 253 (citing Wilson
v. Garcia, 471 U.S. 261, 268 (1985)); but see Wolsky v. Med. Coll. of Hampton Roads,
1 F.3d 222, 225 (4th Cir. 1993) (declining to apply state personal injury statute of
limitations where the state had a statute modeled after and practically identical to the
Rehabilitation Act). Accordingly, in Southerland, we applied Kentucky’s one year
statute of limitations for personal injury actions. Here, McCormick’s section 504 claim
is subject to the two-year limitations period established in Ohio Revised Code § 2305.10.

McCormick, however, maintains that her section 504 claim is subject to § 1658’s
four-year statute of limitations because the claim was brought pursuant to the 1992
Amendments to the Rehabilitation Act. “[A] cause of action arises under an Act of
Congress enacted after December 1, 1990—and therefore is governed by § 1658’s four-
year statute of limitations—if the plaintiff’s claim against the defendant was made
possible by a post-1990 enactment.” Jones, 541 U.S. at 382 (internal quotation marks
omitted). The 1992 Amendments did not provide McCormick a cause of action that was
not available before 1992. “Congress passed the Rehabilitation Act in 1973 to make
certain that no individual with a disability would ‘be subjected to discrimination under
any program or activity receiving Federal financial assistance.’” Fowler v. UPMC
Shadyside, 578 F.3d 203, 206 (3d Cir. 2009) (quoting 29 U.S.C. § 794(a)). McCormick
argues that the 1992 amendments “expand[ed] the meaning and the scope of the
definition of ‘individuals with disabilities,’” Appellant’s Br. at 29-30, and she would not
have a cause of action under the pre-1992 Amendments Rehabilitations Act because
McCormick was not an “individual with a disability” under its former definition.
No. 11-3614 McCormick v. Miami Univ., et al. Page 13

McCormick does not explain how the amendments created a cause of action previously
unavailable to her. McCormick also does not cite to any case law that supports her
position that the amendments made her claim possible. The 1992 amendments
essentially changed the nomenclature in section 504, 29 U.S.C. § 794(a) & (b), by
replacing the word “handicap” with the word “disability.” The district court correctly
concluded that McCormick’s complaint alleged a general disability-based discrimination
claim against an institution of higher education and § 794(a) would have allowed this
suit before the 1992 amendments. Accordingly, we AFFIRM the district court’s
dismissal of McCormick’s section 504 claim as time-barred under Ohio’s two-year
limitations period.

ADA Title II Claim

McCormick next argues that her ADA claim is governed by a six-year statute of
limitations. She claims that Ohio Revised Code § 4112.99, the state discrimination
statute, and not a personal injury action, is the most analogous Ohio cause of action to
her Title II ADA claim. Section 4112.99 claims are generally subject to a six-year
statute of limitations period. See Meyer v. United Parcel Service, Inc., 122 Ohio St. 3d
104, 110, 909 N.E.2d 106, 112 (Ohio 2009) (citing Cosgrove v. Williamsburg of
Cincinnati Mgt. Co., 70 Ohio St. 3d 281, 292-93, 638 N.E.2d 991 (Ohio 1994)).

Because there is no statute of limitations under the ADA, courts must borrow a
statute of limitations from the most analogous state cause of action. This court has
previously applied the statute of limitations for personal injury actions to an ADA claim
brought in Kentucky. Lewis v. Fayette County Detention Ctr., No. 99-5538, 2000 WL
556132, at *2 (6th Cir. Apr. 29, 2000) (unpublished case). The court observed:

State statutes of limitations for personal injuries govern claims under the
federal constitution and 42 U.S.C. § 1983. See Wilson v. Garcia, 471
U.S. 261, 280 (1985). Under the same Wilson analysis, courts faced with
ADA or Rehabilitation Act claims have also looked to the state’s statute
of limitations for personal injury actions.

Id. (citing Everett v. Cobb Cnty. Sch. Dist., 138 F.3d 1407, 1409-10 (11th Cir. 1998);
No. 11-3614 McCormick v. Miami Univ., et al. Page 14

Soignier v. Am. Bd. of Plastic Surgery, 92 F.3d 547, 550-51 (7th Cir. 1996)). “Congress
intended Title II to be consistent with section 504 of the Rehabilitation Act.” Pottgen v.
Mo. State High Sch. Activities Ass’n, 40 F.3d 926, 930 (8th Cir. 1994). Since causes of
action brought under Title II and section 504 are “essentially identical,” we will “apply
the same statute of limitations to both.” Everett, 138 F.3d at 1409. Accordingly, because
we concluded that Ohio’s personal injury actions govern the limitations period for
section 504 claims, we similarly conclude that Ohio’s personal injury actions also
govern the limitations period for claims in Ohio arising under Title II of the ADA.

McCormick argues that Ohio Rev. Code § 4112’s residual six-year statute of
limitations should govern the limitations period. Because § 4112.022 is not modeled
after the ADA, the limitations period for the ADA is governed by Ohio’s personal injury
action. Cf. Southerland, 41 F.3d at 254-55 (rejecting statute of limitations provided by
the Kentucky Equal Opportunity Act for a Rehabilitation Act claim because the state act
was not modeled after the Rehabilitation Act). Section 4112.022 makes it unlawful for
an educational institution to discriminate against persons with a disability in admission
to an educational program or course of study, while Title II of the ADA broadly
prohibits discrimination against persons with a disability in terms of access to any
programs, services, or benefits by any “public entity.” Because § 4112.022 is not
modeled after the ADA and does not set forth its own statute of limitations, the
appropriate statute of limitations for a Title II claim is the two-year limitations period
applicable to personal injury actions in Ohio. Accordingly, we AFFIRM the district
court’s dismissal of McCormick’s ADA claim as time-barred.

State Law Claims

McCormick’s state law claims against Miami University and Schilling,
Messman-Moore, and Wright in their official capacities are barred by the Eleventh
Amendment. As we have observed:

The Supreme Court has squarely held that pendent state law claims
against state officials in their official capacity are barred by the Eleventh
Amendment. . . . The federal courts are simply not open to such state law
challenges to official state action, absent explicit state waiver of the
No. 11-3614 McCormick v. Miami Univ., et al. Page 15

federal court immunity found in the Eleventh Amendment.

Experimental Holdings, Inc. v. Farris, 503 F.3d 514, 520-21 (6th Cir. 2007) (citing
Pennhurst State Sch. v. Halderman, 465 U.S. 89, 117-21 (1984)). Congress has not
abrogated the Eleventh Amendment for state law claims, see Raygor v. Regents of Univ.
of Minn., 534 U.S. 533, 542 (2002), nor has Ohio waived sovereign immunity.

McCormick’s state law claims against the Defendants-Appellees in their
individual capacity are barred under the Ohio Revised Code §§ 9.86 and 2743.02(F).
Ohio Revised Code § 9.86 confers immunity on state officers and employees. It
provides in relevant part:

[N]o officer or employee shall be liable in any civil action that arises
under the law of this state for damage or injury caused in the
performance of his duties, unless the officer’s or employee’s actions were
manifestly outside the scope of his employment or official
responsibilities, or unless the officer or employee acted with malicious
purpose, in bad faith, or in a wanton or reckless manner.

Ohio Revised Code § 2743.02(F) provides in relevant part:

A civil action against an officer or employee . . . that alleges that the
officer’s or employee’s conduct was manifestly outside the scope of the
officer’s or employee’s employment or official responsibilities, or that
the officer or employee acted with malicious purpose, in bad faith, or in
a wanton or reckless manner shall first be filed against the state in the
court of claims, which has exclusive, original jurisdiction to determine,
initially, whether the officer or employee is entitled to personal immunity
under section 9.86 of the Revised Code.

Both provisions work in tandem. As this court observed in Haynes v. Marshall,
887 F.2d 700 (6th Cir. 1989):

Ohio law requires that, as a condition precedent to asserting a cause of
action against a state employee in his individual capacity, the Court of
Claims must first determine that the employee is not entitled to the
immunity provided for in Revised Code section 9.86. Prior to that
condition being satisfied, then, there is no claim under Ohio law upon
which relief may be granted against state employees in their individual
capacities.
No. 11-3614 McCormick v. Miami Univ., et al. Page 16

887 F.2d at 705. As the district court observed, there was no evidence presented that an
Ohio Court of Claims has determined that the defendants were not entitled to immunity.
The district court therefore lacked jurisdiction to hear the state claims. Accordingly, the
district court properly dismissed the state law claims.

III.

For the foregoing reasons, we AFFIRM the judgment of the district court.