United States District Court, W.D. Washington, Seattle
ORDER GRANTING MOTION FOR PARTIAL DISMISSAL
Robert S. Lasnik United States District Judge.
matter comes before the Court on “Defendants'
Motion for Partial Dismissal of (Amended) Complaint for
Discrimination and Retaliation.” Dkt. # 14.
Plaintiff's employment with the Washington Department of
Social and Health Services (“DSHS”) was
terminated in May 2016. Plaintiff alleges that she had been
denied reasonable accommodation for her disability and that
both discriminatory and retaliatory animus motivated her
termination. In this litigation, she has sued the State of
Washington and DSHS for an unspecified declaration of rights
(Count 1), violation of Title VII of the Civil Rights Act of
1964 (Counts 2-4), violation of Titles I and II of the
Americans with Disabilities Act of 1990 (“ADA”)
(Counts 5-6), violation of § 504 of the Rehabilitation
Act of 1973 (Counts 5, 6, and 8), violation of the Age
Discrimination in Employment Act (“ADEA”) (Counts
9-11), and retaliation and failure to accommodate in
violation of the ADA (Counts 7 and 12). Defendants argue
that they are immune from claims under Title I of the ADA and
the ADEA and that plaintiff fails to state a viable claim for
relief under Title II of the ADA.
Eleventh Amendment Immunity
Eleventh Amendment to the United States Constitution provides
that “[t]he Judicial power of the United States shall
not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any
Foreign State.” While the plain language of the
Eleventh Amendment does not expressly bar suits against a
state by its own citizens, it is well established
constitutional law that “an unconsenting State is
immune from suits brought in federal courts by her own
citizens as well as by citizens of another State.”
Edelman v. Jordan, 415 U.S. 651, 663 (1974) (citing
Hans v. Louisiana, 134 U.S. 1 (1890)).
the Eleventh Amendment erects a general bar against suits for
damages against the state and its agencies in federal
court(Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 101 (1984)), there are some exceptions. First,
the state may waive its immunity by consenting to suit.
Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ.
Expense Bd., 527 U.S. 666, 670 (1999). Second, Congress
may subject states to suit in federal court pursuant to
lawmaking powers conferred by the Constitution itself.
Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 80
(2000). Finally, the Eleventh Amendment does not bar actions
seeking only prospective declaratory or injunctive relief
against state officers sued in their official capacities.
Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 73
United States Supreme Court has held that Congress did not
validly abrogate state sovereign immunity under either Title
I of the ADA or the ADEA. See Bd. of Trustees of Univ. of
Ala. v. Garrett, 531 U.S. 356, 374 (2001); Kimel v.
Fla. Bd. of Regents, 528 U.S. 62, 91 (2000). The first
exception to the Eleventh Amendment bar does not, therefore,
apply. Plaintiff argues, however, that the second exception
applies because Washington has waived its sovereign immunity
for claims under Title I of the ADA and the ADEA by accepting
federal funds that were conditioned on a waiver. Plaintiff
relies on the following language in 42 U.S.C. § 2000d-7:
A State shall not be immune under the Eleventh Amendment of
the Constitution of the United States from suit in Federal
court for a violation of section 504 of the Rehabilitation
Act of 1973, title IX of the Education Amendments of 1972,
the Age Discrimination Act of 1975, title VI of the Civil
Rights Act of 1964, or the provisions of any other Federal
statute prohibiting discrimination by recipients of Federal
argues that because the state has accepted federal funding
for DSHS programs, it has voluntarily and knowingly waived
immunity against claims brought under “ANY federal
antidiscrimination statutes whatsoever that involve the
federal[ly] funded agency or program . . . .” Dkt. # 18
offers no case citations in support of this extraordinarily
broad reading of Section 2000d-7, and its terms suggest a
much narrower interpretation. The waiver applies to claims
brought under the four listed titles/acts and, pursuant to
the residual clause, under other federal statutes
“prohibiting discrimination by recipients of Federal
financial assistance.” The listed titles/acts are very
specific. They do not include all titles of the Civil Rights
Act, for example, only the one forbidding sex discrimination
“in any education program or activity receiving Federal
financial assistance.” 20 U.S.C. § 1681(a). When
Congress enacted Title IX in 1972, the purpose was to prevent
the use of federal resources to support discriminatory
practices and to protect individuals against such practices
(rather than simply providing a remedy to victims of
discrimination). Gebser v. Lago Vista Indep. Sch.
Dist., 524 U.S. 274, 286-87 (1998). Congress expressly
attached conditions to the award of federal funds through
Title IX. It was not until 1986, however, that Congress
forced states to choose between accepting federal funds and
retaining their immunity from suit by enacting Section
2000d-7. The statutes identified in Section 2000d-7 contain
express prohibitions against discrimination by recipients of
federal financial assistance, and the residual clause must
therefore be read to extend to similar statutes which
expressly prohibit discrimination by recipients of federal
financial assistance. Wash. State Dep't of Social and
Health Servs. v. Guardianship Estate of Keffeler, 537
U.S. 371, 384 (2003) (“General words are construed to
embrace only objects similar in nature to those objects
enumerated by the preceding specific words.”) (internal
quotation marks omitted). Title I of the ADA and the ADEA
contain no such prohibition. Waiver will not be lightly
implied, and plaintiff has the burden of showing that the
state voluntarily invoked federal jurisdiction or made a
clear declaration that it intends to submit itself to the
power of the federal courts. Coll. Sav. Bank, 527
U.S. at 675-76. Plaintiff's convoluted theory of
“gotcha” waiver is neither clear nor persuasive.
See Levy v. Kan. Dep't of Soc. and Rehabilitation
Servs., 789 F.3d 1164, 1169-71 (10th Cir. 2015) (noting
that Congress “does not . . . hide elephants in
mouseholes” and rejecting the argument that defendant
had waived its sovereign immunity under Title I of the ADA by
accepting federal funds).
plaintiff points out that claims for injunctive and equitable
relief are not necessarily barred by the Eleventh Amendment.
The state and its agencies enjoy immunity from all claims,
however. Although claims for prospective equitable relief may
be asserted against a state official, sued in his or her
official capacity, plaintiff has not sued an official,
identified an on-going violation of federal law, or explained
how prospective relief would remedy the statutory violations
of which she complains. Idaho v. Coeur d'Alene Tribe
of Idaho, 521 U.S. 261, 296 (1997).
Title II of the ADA
concedes that, under binding Ninth Circuit precedent, Title
II of the ADA does not apply to employment discrimination
cases. Dkt. # 18 at 11.
of the foregoing reasons, defendants' motion to dismiss
(Dkt. # 14) is GRANTED. Plaintiff's claims for monetary
damages under Title I of the ADA and under the ADEA are
hereby DISMISSED without prejudice to their being asserted in
state court: they may not be reasserted in this case.
Plaintiff's claims under Title II of the ADA are
dismissed with prejudice. If counsel believes he can,
consistent with his obligations under Fed.R.Civ.P. 11, assert
a claim for prospective equitable relief ...