States Not Immune From ADA Retaliation Suits
Shannon P. Duffy
The Legal Intelligencer
02-26-2002


Although the U.S. Supreme Court has held that states and their agencies enjoy 11th Amendment immunity from employment discrimination suits under Title I of the Americans with Disabilities Act, a federal judge in Philadelphia has ruled that states have no such immunity for suits alleging retaliation under the ADA's Title V.

Senior U.S. District Judge Edmund V. Ludwig's decision in Roberts v. Pennsylvania Department of Public Welfare could open a sizeable hole in the recent trend toward granting 11th Amendment immunity.

Ludwig found that since retaliation claims implicate a First Amendment right -- the right to petition the courts for redress -- they are not subject to the same immunity analysis that proved fatal for the plaintiff in the Supreme Court's decision last year in Board of Trustees of the University of Alabama v. Garrett.

In Garrett, Ludwig said, the justices found that Congress exceeded its powers under Section 5 of the 14th Amendment in its attempt to abrogate the states' 11th Amendment immunity rights.

Section 5 allows Congress to pass "appropriate legislation" to enforce the guarantees of Section 1 of the 14th Amendment.

But the Garrett court found that while Congress may secure 14th Amendment rights by "prohibiting a somewhat broader swath of conduct ... [than is forbidden] by the Amendment's text," any law that goes beyond the scope of Section 1's guarantees "must exhibit congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end."

The justices found that in passing the ADA, Congress failed to make a record of pervasive discrimination by the state against the disabled that would justify abrogating their immunity from suit.

Now Ludwig has ruled that a retaliation claim under the ADA does not suffer from the same flaw.

"Plaintiff here, however, unlike Garrett, has pleaded a claim arising directly within Section 1's 'actual guarantees,' so that a Section 5 'congruence and proportionality' inquiry is not required," Ludwig wrote.

The ruling is a victory for attorney Sharon K. Wallis who volunteered to take over a case that Gregory Roberts had filed pro se.

Roberts, a state juvenile care worker, filed the suit in August 1999 alleging that, following a work-related injury, he was denied restricted duty status at the Bensalem Youth Development Center, a state facility operated by DPW for court-ordered juveniles.

At first, Judge Ludwig treated Roberts' case as one under Title I of the ADA and placed it in suspense pending the outcome of Garrett which had not yet been decided.

But before Garrett was decided, Roberts informed Ludwig that he "did not file this case under ADA. I filed this case under Article Fourteen, equal protection of the law, and Rehabilitation Act."

After Garrett was decided, Ludwig dismissed the ADA claim.

Ludwig later appointed Wallis to take over the case, and in September 2001, she responded to a motion to dismiss by articulating a retaliation claim under both Title V of the ADA and the Rehabilitation Act.

Wallis later filed an amended complaint that detailed Roberts' claim that he was retaliated against after he filed a complaint before the Equal Employment Opportunity Commission.

Now Ludwig has ruled that DPW is not entitled to 11th Amendment immunity because Roberts' retaliation claim is grounded in his First Amendment right.

"The amended complaint adequately implicates a violation of plaintiff's First Amendment right to petition. The First Amendment right to petition protects the filing of EEOC and other administrative charges and applies even though the issue does not refer to a matter of public concern; it also prohibits various forms of retaliation," Ludwig wrote.

Significantly, Ludwig found that Garrett poses no obstacle to such a claim since the plaintiff is still alleging that he was retaliated against for opposing illegal practices.

"After Garrett, an act or practice can still be 'made unlawful by' Title I of the ADA," Ludwig wrote.

In Garrett, Ludwig said, the high court noted that: "our holding here that Congress did not validly abrogate the states' sovereign immunity from suit by private individuals for money damages under Title I does not mean that persons with disabilities have no federal recourse against discrimination. Title I of the ADA still prescribes standards applicable to the states.Those standards can be enforced by the United States in actions for money damages, as well as by private individuals in actions for injunctive relief."

Ludwig found that in the recent spate of cases in which the Supreme Court has extended 11th Amendment immunity, it has applied the "congruence and proportionality" test only to so-called "prophylactic" legislation that goes beyond Section 1's guarantees.

The high court's rationale, Ludwig said, was that Congress must be deterred from using its Section 5 power to decree the substance of the 14th Amendment's restrictions, rather than to enforce those restrictions as delineated by the judiciary.

But Ludwig found that a retaliation claim like Roberts' cannot be said to suffer from the same flaw.

"Where legislation simply enforces judicially determined Section 1 guarantees, no such restraint is necessary," Ludwig wrote.

"Here, given the First Amendment violations asserted in the amended complaint, the ADA's and Rehabilitation Act's retaliation provisions directly serve to enforce the 'actual guarantees' of Section 1. Therefore, at least in this case, they need not be held up to the constitutional prism of congruence and proportionality."