If you are a frequent visitor of our blog, you might remember my post from a few weeks ago about how state employers are protected from federal employment discrimination suits by Eleventh Amendment sovereign immunity (Best Read: Can Public University Employees Sue Their Employers in Federal Court?). Today we will discuss whether this protection also extends to municipal employers.
For those of you who have not read our employment lawyer’s previous post: a quick recap. The Eleventh Amendment states that, “the 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.” In other words, States have immunity from being sued in federal court. There are two caveats to this immunity: federal courts can hear claims if the State consented to the suit and voluntarily waived its immunity, or if Congress abrogated the State’s immunity.
Does Eleventh Amendment sovereign immunity extend to cities and municipal employers?
Employment Law Attorney Answer: While almost nothing in law is so cut-and-dry, generally the answer here is no, Eleventh Amendment sovereign immunity does not extend to cities or municipal employers. The United States Court of Appeals for the Tenth Circuit recently discussed this very question in Guadiana v. City and County of Denver, No. 1:20-CV-03784-STV, 2022 WL 3207613 (10th Cir. August 9, 2022).
On May 15, 2015, Kristen Guadiana was hired as an Eligibility Technician I (“ET”) for a division of the Denver Department of Human Services (“DDHS”) at the City and County of Denver (“Denver”). As an ET, Guadiana assisted clients in determining Medicaid eligibility and had a required number of applications she needed to complete each day. The number of applications she completed and the accuracy with which she completed them were tracked.
Guadiana also has cerebral palsy, which causes paralysis on the left side of her body. As a result of the paralysis, Guadiana is unable to type with her left hand. A few months into Guadiana’s employment, her supervisor Nora Pacheco noticed that she only typed with one hand. On November 5, 2015, during a routine semi-regular check in meeting, Pacheco informed Guadiana her numbers were “a little low” and that Guadiana’s initial probationary period would be extended. Pacheco asked Guadiana if she knew why her numbers were low, and Guadiana responded by explaining that her cerebral palsy prevented her from typing with both hands. Pacheco contacted Denver’s Office of Human Resources’ Americans with Disabilities Act (“ADA”) Coordinator, who sent a Reasonable Accommodation Questionnaire to Guadiana’s physician.
Before the Questionnaire was sent to Guadiana’s doctor, DDHS submitted a formal request to extend Guadiana’s probationary period by 60 days to “allow for more time to manage the ADA interactive process.” A month later, Pacheco’s supervisor, Gabriel Millán, called Guadiana’s previous employer and asked whether Guadiana had any “special accommodations” and her reason for leaving the job. Millán went on to tell several others within Denver about the information she gleaned about Guadiana, without Guadiana’s knowledge and consent.
On January 8, 2016, Denver requested another 60-day extension of Guadiana’s probationary period. In its request, Denver stated DDHS would buy voice-activated software for Guadiana to use and that she would be given a month to learn the software before her activity was tracked. The ADA Coordinator suggested Guadiana use a one-handed keyboard, voice recognition software, and have an ergonomic assessment. A safety officer conducted the ergonomic assessment and suggested Guadiana use a short keyboard and a ten-key keypad.
Guadiana and Denver collectively agreed against the voice recognition software and, while Guadiana was on approved leave for an unrelated condition, Denver acquired a short keyboard. Despite the fact that Guadiana never used any potential accommodations that were discussed, while she was on leave, she received a letter stating the interactive accommodation process had concluded. The ten-key keypad was never ordered, and Denver made no attempt to install the new keyboard until Guadiana returned. Denver was ultimately unable to install the keyboard.
After Guadiana returned to work in March 2016, she was put on a Performance Enhancement Progress Report, which was to last from May through December. Despite the fact that Guadiana’s accommodations had not yet been put into place, Pacheco gave Guadiana a “below expectations” rating and made no mention of her need for accommodations in the report.
The proper short keyboard finally arrived on April 12, 2016; however, Guadiana’s employment was terminated nine days later on April 21, 2016. Denver stated Guadiana was terminated because she failed to pass employment probation. Guardiana filed Charges of discrimination with the Equal Employment Opportunity Commission (“EEOC”), then filed suit in court alleging that Denver discriminated against her because of her disability and retaliated against her after she made a reasonable accommodation attempt. (Best Law Read: Don’t File With The EEOC On Your Own; It’s Bad To File With The EEOC Without A Lawyer; Read This Before Filing An EEOC Charge).
Denver filed a motion to dismiss, asserting sovereign immunity under the Eleventh Amendment. Denver’s argument was that it was entitled to sovereign immunity because Denver was acting as an agent of the state through its DDHS agency. As we learned in my previous post, the State’s sovereign immunity is extended to state agencies who are considered “arm[s] of the state.” Guadiana argued that she was employed by Denver and that her claims were solely against Denver, not DDHS.
The appellate court’s analysis was based on whether or not Guadiana was employed by the City of Denver or DDHS, which could be considered a state agency. The United States Court of Appeals for the Eleventh Circuit ultimately held Guadiana’s employer to be Denver. Guadiana’s complaint only named Denver. Denver was the entity who paid her and provided her benefits. Guadiana was required to adhere to Denver’s policies, she was subject to Denver’s Career Service Rules, and Denver controlled the terms and conditions of Guadiana’s employment. Perhaps most importantly, Denver was also the entity that hired Guadiana, terminated her employment, and controlled the interactive accommodation process.
Because Guadiana was, indeed, a city employee, the last question to answer was whether Denver was entitled to sovereign immunity. The answer was a resounding no. Courts have established that sovereign immunity does not extend to cities, counties, or other political subdivisions of the state. Ambus v. Granite Bd. of Educ., 975 F.2d 1555, 1560 (10th Cir. 1992).
How do I sue my employer?
Best Employment Lawyer Answer: While suing a city employer worked out well for Guadiana, it is still important to retain an attorney who advocate on your behalf. If you discriminated against or wrongfully terminated by a city or county employer, call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical). Call our lawyers in Ohio, Michigan and North Carolina to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.
This employment law website is an advertisement. The materials available at the top of this page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “how do I file a Charge of Discrimination against my employer in the EEOC?”, “was I wrongfully terminated?”, or “I was fired for asking for a reasonable accommodation”, it would be best for to contact an experienced attorney to obtain advice with respect to any particular employment law issue or problem. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.