Former State Worker's ADA Claim Barred By Sovereign Immunity, 10th Cir. Affirms

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By Kevin McGowan

June 16 — A former Kansas state employee's retaliation claim under the Americans with Disabilities Act was properly dismissed because the state never waived its 11th Amendment immunity to ADA lawsuits for money damages, the U.S. Court of Appeals for the Tenth Circuit ruled June 16.

Affirming summary judgment for the Kansas Department of Social and Rehabilitation Services, the court rejected Paul Levy's argument that a Rehabilitation Act provision that waives sovereign immunity under that act for state agencies that accept federal funds also applies to claims under the ADA.

Instead, the Tenth Circuit said “the close relationship” between the ADA and the Rehabilitation Act is “not sufficient” to find the latter law's sovereign immunity waiver provisions “apply by implication” to the ADA.

“Although Levy's argument is novel, we must reject it and agree with the Supreme Court when it stated that Congress ‘does not ... hide elephants in mouseholes,' ” Judge Mary Beck Briscoe wrote. “For a waiver of sovereign immunity to be ‘knowing and voluntary,' it cannot be hidden in another statute and only applied to the ADA through implication.”

Citing Tenth Circuit precedent, the court also said Levy's separate claim under Section 504 of the Rehabilitation Act is governed by Kansas's two-year statute of limitations for injuries to personal rights, rather than the state's three-year limitations period for statutorily created rights.

Since Levy sued in federal court more than two years after his alleged constructive discharge in February 2009, his Rehabilitation Act claim was properly dismissed as untimely filed, the court said.

Alleged Constructive Discharge 

Levy worked as a rehabilitation counselor for the Wichita, Kan., office of the state's Department of Social and Rehabilitation Services. 

In December 2008, he agreed to act as a counselor for Tina Bruce, a blind co-worker who sought a vocational assessment on whether the state agency was fully accommodating her disability. Levy ordered the assessment from Brenda Umholtz, a state contractor who previously had done extensive work for both Levy and Bruce. Umholtz's report found Bruce wasn't receiving adequate accommodation and also noted that under the ADA, Bruce's job performance couldn't be “fairly evaluated” until “such accommodations are consistently available.”

Levy's department director wasn't happy he had ordered the assessment for Bruce and proposed to fire him for violating the agency's conflict of interest policies. Assuming after talking with the director there was no way to avoid termination, Levy resigned Feb. 25, 2009. He later characterized his departure as a constructive discharge.

In March 2011, Levy joined a lawsuit against the state agency previously filed by Umholtz, alleging unlawful retaliation under the ADA and Rehabilitation Act for advocating for better workplace accommodation of a disabled co-worker. The U.S. District Court for the District of Kansas dismissed Levy's ADA claim based on the state's sovereign immunity and ruled he failed to file a timely Rehabilitation Act claim (Umholtz v. State of Kansas, 926 F. Supp. 2d 1222, 27 AD Cases 1119 (D. Kan. 2013)

ADA's Link to Rehabilitation Act 

The U.S. Supreme Court has ruled the 11th Amendment shields state employers from ADA suits for damages in federal court because Congress didn't validly abrogate the states' sovereign immunity for employment discrimination claims under Title I of the ADA (Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 11 AD Cases 737 (U.S. 2001).

But the court hasn't ruled on whether Congress abrogates states' sovereign immunity for retaliation claims under Title V of the ADA, the Tenth Circuit said. Lower federal courts have distinguished between retaliation claims that stem from ADA Title I employment discrimination, ruling those are barred by the 11th Amendment, and retaliation claims relating to public services under ADA Title II, ruling states may be sued on such claims, the appeals court said.

But Levy didn't argue Congress abrogated state sovereign immunity for ADA retaliation claims. Rather, he contended the Kansas Department of Social and Rehabilitation Services waived its sovereign immunity from an ADA retaliation suit by accepting federal funds.

A 1986 amendment to the Rehabilitation Act, enacted under Congress's spending clause power, provides “a state shall not be immune under the Eleventh Amendment” from suits alleging violation of Section 504 of the Rehabilitation Act, Title VI of the 1964 Civil Rights Act, Title IX of the 1972 Education Amendments or “the provisions of any other federal statute prohibiting discrimination by recipients of federal financial assistance.”

Levy argued since the Rehabilitation Act expressly incorporates the ADA's retaliation provision, then the Rehabilitation Act's sovereign immunity waiver provision applies to retaliation claims brought under the ADA.

But the Tenth Circuit said substantive similarities between the ADA and the Rehabilitation Act don't mean the latter's waiver provision applies to the ADA.

Although Levy is correct that the two statutes “are closely linked” and the ADA was “intended to build on the Rehabilitation Act,” the two laws “were enacted for slightly different purposes and under wholly different provisions of the Constitution,” the court said.

‘Stringent' Test for Waiver 

The text for determining whether a state has waived sovereign immunity is “a stringent one” that requires a state's “clear declaration” it intends to submit to federal court jurisdiction, the Tenth Circuit said.

A court will find waiver of a state's 11th Amendment protection “only where stated ‘by the most express language or by such overwhelming implications from the text' ” of a law that permits no other reasonable construction, the Tenth Circuit said.

Levy can't show Congress intended the Rehabilitation Act's waiver provision to affect states' sovereign immunity from ADA claims as well, the court said.

According to the court, “At best, there may be an argument that the ADA falls into the residual clause of the Rehabilitation Act's waiver for violations of ‘the provisions of any other federal statute prohibiting discrimination by recipients of federal financial assistance.' ”

But the ADA has “a much broader focus” than discrimination by recipients of federal financial assistance, the court said. “Indeed, the expansion of liability [to most employers] is one of the primary differences between the ADA and Rehabilitation Act,” the court added.

In addition, no court considering the issue previously has found the Rehabilitation Act's waiver provisions apply to the ADA, the Tenth Circuit said.

Silence of Congress Is Telling 

The ADA was passed four years after the Rehabilitation Act waiver provision was enacted, but Congress never mentioned it in enacting the ADA, the court said.

“Congress could have included a similar waiver provision in the ADA or added the ADA to the list of nondiscrimination statutes in the Rehabilitation Act's waiver provisions, but it did not,” Briscoe wrote. “In the absence of clear evidence that Congress intended the states to waive their sovereign immunity under the ADA by accepting federal funds, we will not stretch the language of the Rehabilitation Act to conclude that [the Kansas state agency] has made a clear and voluntary waiver of its sovereign immunity for ADA claims.”

Judges Neil M. Gorsuch and Michael R. Murphy joined in the decision.

Alan V. Johnson of Sloan Eisenbarth Glassman McEntire & Jarboe LLC in Topeka, Kan., represented Levy. Gregory A. Lee and Jenna R. Seematter of Cooper & Lee LLC in Topeka represented the state agency.

To contact the reporter on this story: Kevin McGowan in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

Text of the opinion is available at

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