Today’s blog entry is going to be a short one. One of the issues we have discussed quite a bit in a variety of contexts is sovereign immunity. What happens when the claim is retaliation and sovereign immunity is involved? Does sovereign immunity get forcibly waived in that situation? A case answering this question is a published decision from the Sixth Circuit decided on June 24, 2024, is the case of Stanley v. Western Michigan University, a published decision out of the Sixth Circuit, here. As usual, blog entry is divided into categories and they are: facts; court’s reasoning that sovereign immunity applies to the retaliation claim; and thoughts/takeaways. The court considers a couple of other issues as well (effect of a premature notice of appeal and whether the dismissal is with or without prejudice), but we aren’t going to address those issues in this blog entry. Since the blog entry is so short and only one issue is discussed, the reader is probably going to want to read the whole thing.

 

I

Facts

 

WMU terminated Stanley’s employment during his probationary period for excessive tardiness and failure to follow proper clocking-in procedures. Stanley has severe ADHD that he claims impacted his ability to timely clock in, such as by causing him to occasionally forget his swiping ID card. Stanley claims he was “disciplined for being late after having to wait for WMU staff to perform his required temperature check for COVID-19 purposes,” even though he was told he would not be disciplined following such occurrences. Id. at 3. Because Stanley sometimes forgot his ID card, he requested a reasonable accommodation—such as a punch card to be kept onsite—which WMU denied. Stanley also spoke to WMU’s office of institutional equity to determine whether he would be able to use his service dog in any department, including dining services, which Stanley claims led to employees in that office “asking improper questions regarding [his] disability.” Id. Stanley disclosed the tasks his service dog performed but did not elaborate on his disability or medical history.

 

Stanley claims that he could not comply with WMU’s timeliness standards because of his disability, for which WMU did not provide a reasonable accommodation. Katie DeCamp, the head supervisor of dining services at WMU, indicated that Stanley was told during training that he could use the speaker at the building’s entrance to ask someone to open the door for him so that he would not be late, but Stanley claims he was never told about the speaker. On November 10, Stanley claims he was informed that the hospitality department “doesn’t do” accommodations, after which he contacted WMU’s human resources department. Id. The following day, WMU terminated Stanley.

 

Western Michigan defended on the basis of sovereign immunity under the 11th Amendment.

 

II

Court’s Reasoning That Sovereign Immunity Applies to the Retaliation Claim

 

  1. In Board of Trustees of the University of Alabama v. Garrett, here, United States Supreme Court held that the ADA does not forcibly waive sovereign immunity when it comes to employment matters.
  2. Ex Parte Young does not allow for suits against the State itself.
  3. Suits against actors in their official capacity enjoy 11th Amendment immunity.
  4. The ADA does not allow for personal liability.
  5. Neither the Supreme Court nor the Sixth Circuit has previously addressed whether the States are entitled to immunity from claims brought under Title V of the ADA.
  6. In determining whether forcible waiver of sovereign immunity can be upheld, the court has to look to whether Congress unequivocally expressed its intent to abrogate that immunity. It also has to look to Congress acted pursuant to a valid grant of constitutional authority.
  7. Congress clearly expressed this intention to get rid of 11th Amendment immunity in the ADA and 42 U.S.C. §12202, here.
  8. Per Board of Trustees of the University of Alabama v. Garrett, here, persons with disabilities are in the rational basis class with respect to employment matters.
  9. In this case, the retaliation claim (Title V), is based upon a Title I claim. Accordingly, it logically follows that a person with a disability would be in the rational basis class with respect to a retaliation claim where the underlying matter is an employment matter. In other words, if Congress did not validly abrogate 11th Amendment immunity per Title I claims, then it also did not abrogate 11th Amendment immunity for a claim under Title V alleging retaliation for a Title I claim.
  10. The ADA remedial scheme is not proportional to the harm being redressed when it comes to retaliation cases based upon employment situations because the legislative record and congressional findings do not contain any discussion of a history and pattern of retaliation by the States against public employees opposing disability discrimination.
  11. Every other circuit has reached the same conclusion.

 

III

Thoughts/Takeaways

 

  1. We have discussed before, such as here, how courts look at retaliation claims by linking it to the underlying matter. So, the reasoning of this case is not surprising.
  2. Keep in mind, that persons with disabilities per Tennessee v. Lane, here, vary in terms of the equal protection class they find themselves in depending upon the facts of the case. I know of no other category of people whose equal protection class varies depending upon the facts.
  3. The decision is published.
  4. The 11th Circuit, in a case we discussed here, reached a virtually identical conclusion to this case.
  5. The courts are pretty much unanimous, with one exception, which we discussed here, that personal liability is not something allowed under the ADA regardless of the Title involved.
  6. As I wrote in the latest edition of my book, here (while the latest edition of my book was published in 2013, I have been updating the various editions of the book in real time since December 2011 with my Understanding the ADA blog), it isn’t a foregone conclusion at all that persons with disabilities are in the rational basis class with respect to employment matters for two reasons. First, the Supreme Court in Garrett, cited to City of Cleburne, Texas v. Cleburne Living Center, Inc., here. A close reading of Cleburne reveals that it was not a typical rational basis review case because the majority opinion only reaches that conclusion after a very detailed discussion of how government have been quite aggressive in trying to serve the needs of persons with what is now called intellectual and developmental disabilities. In fact, Justice Marshall in an opinion joined by Justice Brennan and Justice Blackmun made the point that the majority reasoning did not resemble rational basis review at all because too much attention is paid in the opinion to the rights of persons with what is now called intellectual and developmental disabilities  and to intellectual disabilities in general. Justice Marshall thought it would be more accurate to call the level of the review of the majority opinion as, “second order rational basis.” In Heller, here, the Supreme Court specifically noted that they were not asked to decide what equal protection class persons with disabilities fit in because the parties had already stipulated that persons with disabilities were in the rational basis class. All this said, it is beyond doubt (the cases are unanimous), that sovereign immunity cannot be forcibly waived with respect to persons with disabilities in employment matters).

ADA turns 34 on July 26.

Happy anniversary!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!