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    The Lawletter Blog

    PUBLIC LAW UPDATE: Limited Federal Law Options for State Employee Claiming Disability Discrimination

    Posted by Gale Burns on Mon, Dec 3, 2012 @ 15:12 PM

    December 4, 2012

    John Stone, Senior Attorney, National Legal Research Group

    Severe psychological disorders that plagued Josephine led to a stormy relationship between her and her employer, the California Department of Transportation ("Caltrans").  Caltrans wanted to terminate Josephine, and, according to her, it passed her over in promotions and harassed her because of her mental disability. These matters were resolved by a settlement that put her on disability retirement status, with the option of seeking reinstatement to active employment. When Josephine took that step, litigation ensued in which Caltrans contended that despite her "praiseworthy" attempts to get well, her disorders left her unable to perform duties as an accounting officer.

    After her state court challenge to an administrative decision in favor of Caltrans failed, Josephine sued the responsible state officials in federal court. These claims failed as well, and in ways that suggest that state employees may sometimes need to resort to state law remedies, where they are available, to get full relief for alleged disability discrimination. Okwu v. McKim, 682 F.3d 841 (9th Cir. 2012). The reasons for dismissal of Josephine's federal claims were mostly legal rather than stemming from the facts of her particular case.

    Josephine's claim under Title I of the Americans with Disabilities Act ("ADA"), which covers employment discrimination, was properly dismissed because the U.S. Supreme Court has ruled that when Congress enacted that provision, it did not intend to abrogate the States' Eleventh Amendment immunity. See Univ. of Ala. Bd. of Trs. v. Garrett, 531 U.S. 356, 360 (2001). The Court in Garrett stated that the legislative record of the ADA failed to show that Congress had identified a pattern of irrational state discrimination in employment against the disabled and that the record thus did not support abrogation of the States' Eleventh Amendment immunity from suits for money damages under Title I of the ADA; in any event, said the Court, the rights and remedies created by the ADA against the States raised concerns as to "congruence and proportionality," supporting the determination that Congress did not validly abrogate the States' immunity.

    With no claim directly available to her under Title I of the ADA, Josephine's next theory was based on asserting the substantive rights provided by that statute in a claim brought under the broad civil rights statute, 42 U.S.C. § 1983. Section 1983 is more commonly used to obtain redress for violation of federal constitutional rights, but in some cases it can be the remedial vehicle for violation of federal statutory rights. Not so here. This claim collapsed under the principle that Congress's inclusion of a comprehensive remedial scheme, such as is set forth in Title I of the ADA, precludes any attempt to bootstrap a claim under that provision in a separate § 1983 cause of action. This is the required result, even though the State's immunity foreclosed a direct action under Title I of the ADA to get the benefits of that "comprehensive remedial scheme."  The Supreme Court's decision in Garrett, which "defanged" the Title I scheme for state employees, did nothing to change the legislative intent to preclude asserting Title I rights by means of § 1983. As the Okwu court put it, "We are not free to interpret § 1983 in a way that provides a substitute remedy that Congress never provided." 682 F.3d at 846.

    Next up for disposition by the Ninth Circuit was Josephine's § 1983 claim of disability discrimination brought under the Equal Protection Clause of the Fourteenth Amendment. Again, her status as a state government employee contributed to the claim's failure. In part, Josephine was arguing that she had been discriminated against as a "class of one," that is, that without any rational basis she had been treated differently from other similarly situated persons, but not that the differential treatment was due to her membership in any particular class. Unfortunately for her, the U.S. Supreme Court has foreclosed any such claim, when brought by public employees. In Engquist v. Oregon Department of Agriculture, 553 U.S. 591 (2008), the Court reasoned that the "class of one" theory was simply "a poor fit" in the context of public employment, because in that realm there is necessarily discretionary decisionmaking based on a vast array of subjective, individualized assessments. The rule that people should be "treated alike, under like circumstances and conditions," is not violated when one person is treated differently from others, because treating like individuals differently is an accepted consequence of the discretion granted to public employers. In that setting, allowing a challenge based on the arbitrary singling out of a particular person would undermine the very discretion that such state officials are entrusted to exercise.

    The final federal claim decided against Josephine did turn on the facts of her case, not just on principles of law. That was a § 1983 contention based on denial of equal protection, but with Josephine as a member of the "class" of disabled persons, not a "class of one." Even if Josephine could identify disparate treatment, that is, better treatment of a similarly situated employee who was not disabled, the court had to affirm the employment decisions as long as they were supported by a rational basis. Caltrans's decision not to reinstate Josephine was rationally based on the State's determination that her psychological disorders, despite her best efforts, prevented her from fulfilling her former duties.  Okwu, 682 F.3d at 846.

    Cognizant of the fact that the doors to the federal courthouse had been closed in Josephine's case in which she sued for damages, the court added in a footnote, id. at 845 n.3, that state employees are not left without any remedy against disability discrimination, at least in California. California's Fair Employment and Housing Act, Cal. Gov't Code §§ 12900B12996, allows public employees to sue the State in state court for disability discrimination. Schifando v. City of Los Angeles, 79 P.3d 569, 573-74 (Cal. 2003). State employees may also seek relief from disability discrimination under California's Civil Service Act, Cal. Gov't Code § 19702.

    Along the same lines, the Court in Garrett stated as follows:

    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 under Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). In addition, state laws protecting the rights of persons with disabilities in employment and other aspects of life provide independent avenues of redress.

    531 U.S. at 374 n.9.

    Topics: legal research, disability distrimination, state employee, Okwu v. McKim, limited federal law options, ADA does not abrogate States' 11th Amendment i, § 1983 not available for Title I rights, public law, 9th Circuit, John M Stone

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