Normally, as you all know, I don’t blog on more than one case in a week. However, I will be out of town the first part of next week, and I generally prefer to get blog entries up at the beginning of the week. I am also headed out of town the following week as well (middle to end of that week). So, I thought I would put up a blog now and also establish a game plan for the blog entries for the next two weeks. Our topic for the day and for our next blog as well is retaliation. There are two cases that we will look at in this blog and in the following blog (we can call it part I and part II). In part I, which is the blog entry for the week of February 12, the case is Dupree v. Owens, here, a published decision from the 11th Circuit decided February 6, 2024. In part II, which will be the blog entry for the one after this one, we will discuss Murray v. UBS Securities, LLC, here,  decided by the United States Supreme Court on February 8, 2024. Dupree asks the question of whether sovereign immunity applies to a retaliation claim involving a Title I situation. It also asks the question of whether sovereign immunity dismissals must be done without prejudice. Murray asks the question of whether the Sarbanes-Oxley act requires animus when it comes to proving retaliation. As usual, the blog entry is divided into categories and they are: Dupree v. Owens facts; Dupree’s court’s reasoning that sovereign immunity applied to the retaliation claim; Dupree’s court’s reasoning that sovereign immunity dismissals must be without prejudice; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

 

I

Dupree v. Owens Facts:

 

The facts are pretty straightforward. Two different employees of the State of Georgia, Dupree and Battle (one with the Department of Human Services and one with Georgia Department of Corrections), were both terminated after putting their employer on notice about their disability, seeking accommodations, and then being terminated. They both filed Title I claims as well as retaliation claims.

 

II

 

Dupree’s Court’s Reasoning That Sovereign Immunity Applied to the Retaliation Claim

 

  1. Sovereign immunity is inherently jurisdictional in nature and thus, the appellate court can review lower court determinations with a de novo standard.
  2. Overcoming sovereign immunity means having to show that Congress unequivocally declared its intent to abrogate sovereign immunity. It also means having to show that Congress did so pursuant to a valid grant of constitutional authority.
  3. In figuring out whether a valid grant of constitutional authority exists, a court looks to see whether the law Congress came up with was congruent and proportional to the harm being redressed. In particular, courts look at: 1) the right Congress sought to enforce when it enacted the ADA; 2) examine whether a demonstrated record of unconstitutional discrimination existed to support Congress’ decision that preventative legislation was warranted; and 3) determine whether the ADA provision at issue was an appropriate response to the history of mistreatment.
  4. No controlling case law from the 11th Circuit or the United States Supreme Court exists concerning whether the 11th amendment specifically bars Title V ADA claims against State entities when brought with Title I claims. In a footnote, the court notes that the Ninth Circuit has said that sovereign immunity applies when a Title V claim is based on an underlying Title I violation.
  5. Tennessee v. Lane, here, doesn’t help either plaintiff because that case did not concern Title I of the ADA.
  6. Plaintiffs claims have to fail because the Supreme Court in Board of Trustees of the University of Alabama v. Garrett, here, specifically held that the ADA does not forcibly waive sovereign immunity when it comes to Title I matters. Here, the underlying situation that the retaliation is based upon is an employment matter (Title I), which was specifically part of the complaint.

 

II

Court’s Reasoning That the Dismissal Must Be without Prejudice

 

  1. Dismissals for a lack of jurisdiction are not judgments on the merits and are to be entered without prejudice.
  2. Since sovereign immunity is jurisdictional in nature, sovereign immunity dismissals should be done without prejudice.
  3. District courts should err on the side of clarity and indicate in their orders whether prejudice has attached. As a result, the case is vacated and remanded for the limited purpose of allowing the district court to dismiss the case without prejudice.

 

III

Dupree Thoughts/Takeaways

 

  1. When it comes to retaliation, retaliation claims just about always attach to an underlying situation involving Title I, Title II, Title III of the ADA. Accordingly, courts will relate the retaliation claim back to one of those situations when they deal with retaliation claims.
  2. Interesting that the court says it will leave for another day as to whether sovereign immunity might apply if only a retaliation claim standing by itself would be brought. Considering how courts invariably look to the situation behind the retaliation, I am not sure the answer would be any different in that eventuality, but it might be.
  3. The Georgia Atty. Gen. is well known for employing sovereign immunity at every possibility when they are faced with a lawsuit.
  4. District courts should specify in their orders when dismissing cases whether prejudice attaches.
  5. The dismissal without prejudice is significant for a couple of reasons. Assuming the statute of limitations is not an issue, both of the plaintiffs have opportunity to proceed under other theories. First, the 11th Circuit is the only circuit that I am aware of that has held that Title II of the ADA applies to employment situations, here. Second, plaintiff’s could get around sovereign immunity by bringing a §504 claim as courts just about always hold that the receipt of federal funds waives sovereign immunity. Finally, the 11th Circuit has also said that individuals working for nonfederal governmental entities (Title II) can be held individually liable for retaliation, here (I know of no other circuit saying this). It will be interesting to see how and whether this case develops further with respect to future claims of individual liability for retaliation or for Title II claims.

 

Have fun watching the Super Bowl y’all.

William Goren

William D. Goren is one of the country’s foremost authorities on the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. For 28 years and continuing, he has been advising on ADA compliance as both an attorney and professor—of which during…

William D. Goren is one of the country’s foremost authorities on the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. For 28 years and continuing, he has been advising on ADA compliance as both an attorney and professor—of which during his time as a full-time academic at various institutions in Chicago, he won numerous teaching awards and achieved tenure.