Blauer v. Dep't of Workforce Servs.

• Decision Date: 01 May 2014
• Docket Number: No. 20130047–CA.,20130047–CA.
• Court: Utah Court of Appeals
• Parties: Lorin BLAUER, Plaintiff and Appellant, v. DEPARTMENT OF WORKFORCE SERVICES, Defendant and Appellee.

331 P.3d 1

759 Utah Adv. Rep. 37

Lorin BLAUER, Plaintiff and Appellant,

v.DEPARTMENT OF WORKFORCE SERVICES, Defendant and Appellee.

No. 20130047–CA.

Court of Appeals of Utah.

May 1, 2014.

Recognized as Unconstitutional

42 U.S.C.A. § 12202

Vincent C. Rampton, Salt Lake City, Attorney for Appellant.

Sean D. Reyes, Salt Lake City, J. Clifford Petersen, and Philip S. Lott, Attorneys for Appellee.

Judge JAMES Z. DAVIS authored this Opinion, in which Judge GREGORY K. ORME and Senior Judge RUSSELL W. BENCH concurred.¹

Opinion

DAVIS, Judge:

¶ 1 Lorin Blauer appeals the trial court's dismissal of his claims under the federal Americans with Disabilities Act (ADA), see42 U.S.C. § 12112(b)(5)(A) (requiring employers to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee”), and the Utah Antidiscrimination Act (UADA), seeUtah Code Ann. § 34A–5–106(1)(a)(i)(H) (LexisNexis Supp.2013) (prohibiting employment practices that discriminate on the basis of disability). We affirm.

BACKGROUND

¶ 2 This case is the fifth in a series of cases addressing Blauer's civil and administrative claims relating to his employment with and termination from the Department of Workforce Services (DWS). Additional facts are outlined in those cases. See Blauer v. Career Serv. Review Bd. ( Blauer IV), 2012 UT App 120, 276 P.3d 1246; Blauer v. Department of Workforce Servs. ( Blauer III), 2008 UT App 84, 2008 WL 660522; Blauer v. Department of Workforce Servs. ( Blauer II ), 2007 UT App 280, 167 P.3d 1102; Blauer v. Department of Workforce Servs. ( Blauer I ), 2005 UT App 488, 128 P.3d 1204.

¶ 3 Blauer worked as legal counsel for DWS. Beginning in 2003, Blauer sought ADA accommodations for sleep apnea, sciatica, and coronary artery disease. His doctor recommended that DWS accommodate Blauer's sciatica and sleep apnea by selecting his assignments “in such a way as to avoid, as much as possible, his functioning in ... sedentary settings” and that it accommodate Blauer's coronary artery disease by making his work environment less stressful, i.e., by providing him with “[k]nown and understood expectations” limited to “a full 40 hour work load for an experienced attorney in Mr. Blauer's specialty.” Blauer provided this recommendation to DWS's ADA coordinator, who determined that his “limitations [did] not rise to a level requiring an ADA accommodation” but referred the recommendations to Blauer's supervisor. In response to Blauer's concerns, as well as additional concerns about Blauer's work performance, his supervisor changed his work assignment and required that he “conduct [unemployment insurance] hearings full-time with no change in job title or pay rate.” Blauer contested the reassignment, arguing that conducting hearings full time would require him to sit for long stretches of time and prevent him from moving around as his doctor had recommended. However, DWS's executive director upheld the reassignment, explaining that “[s]ince the majority of these hearings are conducted over the telephone, there should be no problem with [Blauer] standing up and moving around [his] office while the hearings are in progress.” Thereafter, Blauer applied for and was granted medical leave pursuant to the Family and Medical Leave Act (FMLA). Blauer refused to return to work until DWS agreed to make the accommodations he sought, and after Blauer had exhausted his FMLA leave, DWS terminated his employment.

¶ 4 While on FMLA leave, Blauer filed a grievance with the federal Equal Employment Opportunity Commission (EEOC) and received a Notice of Right to Sue from the Civil Rights Division of the United States Department of Justice. See generally Dao v. Auchan Hypermarket, 96 F.3d 787, 788–89 (5th Cir.1996) (per curiam) (holding that an employee seeking to pursue an ADA claim must exhaust her administrative remedies by filing a charge of discrimination with the EEOC prior to filing a civil claim, and citing identical holdings from other federal courts that have considered the issue). Blauer then filed a complaint in state court, alleging violations of the ADA and the UADA, seeking both monetary damages and reinstatement of his employment with DWS. DWS moved to dismiss the claims, and the trial court granted its motion, determining that DWS was immune from suit under the ADA and that the trial court lacked jurisdiction over the UADA claims because the UADA provides only an administrative remedy and not a private right of action. Blauer appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 5 Blauer asserts that the State has waived sovereign immunity with respect to ADA claims and that the trial court therefore erred in dismissing his claims on grounds of sovereign immunity. “[A] district court's dismissal of a case based on governmental immunity is a determination of law that we afford no deference. We review such conclusions for correctness.” Wheeler v. McPherson, 2002 UT 16, ¶ 9, 40 P.3d 632 (citations omitted).

¶ 6 Blauer further argues that the UADA is unconstitutional inasmuch as it permits the Division of Antidiscrimination and Labor to arbitrarily deprive state employees of a remedy, despite purporting to grant such employees protection from discrimination.² “We review constitutional questions for correctness.” State v. Van Dyke, 2009 UT App 369, ¶ 18, 223 P.3d 465.

ANALYSIS

I. Sovereign Immunity and Waiver

¶ 7 Blauer first contests the trial court's determination that DWS is immune from suit under the ADA. Blauer points us to section 12202 of the ADA, which provides,

A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter. In any action against a State for a violation of the requirements of this chapter, remedies (including remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in an action against any public or private entity other than a State.

42 U.S.C. § 12202. However, the United States Supreme Court has struck down the above-quoted section as an unconstitutional abrogation of the states' Eleventh Amendment immunity. Board of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 364, 373–74, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). Blauer emphasizes the fact that the Eleventh Amendment protects states from suit only in federal court, not state court. However, state immunity from suits based on federal law exists irrespective of the Eleventh Amendment, and the United States Supreme Court has rejected the idea that state courts could be required “to entertain federal suits which are not within the judicial power of the United States and could not be heard in federal courts.” Alden v. Maine, 527 U.S. 706, 712–13, 754, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). Thus, the fact that the Eleventh Amendment does not explicitly protect states from federal claims brought in state court does not mean that Blauer can avoid DWS's claim of sovereign immunity by bringing his ADA claim in state court instead of federal court.

¶ 8 Blauer next asserts that even if the State of Utah and its subdivisions are immune from ADA suits, Utah has waived that immunity. See generally id. at 737, 119 S.Ct. 2240 (observing that “a State may waive its sovereign immunity and consent to suit”). His argument relies on Utah's acceptance of ADA-related federal funding and its passage of the UADA.

¶ 9 First, Blauer argues that Utah's receipt of federal funding for ADA-related programs constitutes a waiver of immunity with respect to ADA claims. Although Congress has the power to condition receipt of federal funds on a state's waiver of sovereign immunity pursuant to the spending clause, see College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 686–87, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999), “the mere receipt of federal funds cannot establish that a State has consented to suit in federal court,” Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246–47, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985), superseded by statute on other grounds,42 U.S.C. § 2000d–7(a)(1) (imposing an unambiguous waiver of immunity on states that receive federal financial assistance in connection with the Rehabilitation Act and various other federal antidiscrimination statutes). Such a waiver occurs only where there has been “ ‘an unequivocal expression of congressional intent’ ” to make funding conditional on a waiver of immunity. See id. at 253–54, 105 S.Ct. 3142 (quoting Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), superseded by statute on other grounds,28 U.S.C. § 1367); see also Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985) (explaining that in order for a federal act to abrogate states' sovereign immunity, Congress must “unequivocally express[ ] its intent to abrogate the immunity”). Federal courts have consistently held that Congress has not “ ‘manifest[ed] a clear intent to condition participation in the programs funded under the [ADA] on a State's consent to waive its constitutional immunity.’ ” Panzardi–Santiago v. University of P.R., 200 F.Supp.2d 1, 9 (D.P.R.2002) (quoting Atascadero, 473 U.S. at 247, 105 S.Ct. 3142, and applying its analysis of the Rehabilitation Act to the ADA); accord, e.g., Shotz v. City of Plantation, 344 F.3d 1161, 1174 (11th Cir.2003) (holding that the liability provisions of the ADA are not conditioned on the receipt of federal funding and contrasting the ADA with the Rehabilitation Act, which, unlike the ADA, was enacted pursuant to the Constitution's spending clause); Fields v. Department of Pub. Safety, 911 F.Supp.2d 373, 379 & n. 6 (M.D.La.2012); Dansby–Giles v. Jackson State Univ., 638 F.Supp.2d 698, 700–01 (S.D.Miss.2009); Gary v. Georgia Dep't of Human Res., ...