APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS. (D.C. No. 5:11-CV-04018-JAR).
Alan V. Johnson of Sloan, Eisenbarth, Glassman, McEntire & Jarboe, L.L.C., Topeka, Kansas, for Plaintiff-Appellant.
Gregory A. Lee, (Jenna R. Seematter, with him on the brief), of Cooper & Lee, LLC, Topeka, Kansas, for Defendant-Appellee.
Before BRISCOE, Chief Judge, MURPHY and GORSUCH, Circuit Judges.
BRISCOE, Chief Judge.
Paul Levy alleges that he was constructively discharged from the Kansas Department of Social and Rehabilitation Services (SRS) in retaliation for advocating for better accommodation for a disabled co-worker. He filed retaliation claims against SRS under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. The district court granted summary judgment to SRS on both claims, concluding that SRS was entitled to sovereign immunity on Levy's ADA claim and that Levy's Rehabilitation Act claim was barred by the statute of limitations. Levy appeals from that decision. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the district court's dismissal of his claims.
A. Factual background
Paul Levy was hired as a rehabilitation counselor in the Wichita office of SRS in 2001. In December 2008, Levy agreed to serve as a counselor for a co-worker in his office, Tina Bruce, who had requested a vocational assessment to determine whether her disability (blindness) was being fully accommodated. Levy ordered the assessment from a contractor, Brenda Umholtz, who had done extensive work for both Levy and Bruce at SRS. Umholtz's report stated that Bruce was not receiving adequate accommodation for her blindness and could not compete on an " 'equal-playing field' as her . . . counterparts even within her office." App. at 73. The report also noted that Bruce was " protected by A.D.A. laws regarding accommodations that dictate that she cannot be fairly evaluated until such accommodations are consistently available, in working order during her entire work hours." Id.
On February 20, 2009, SRS department director Michael Donnelly sent Levy a letter proposing Levy's termination. The stated reason for Levy's termination was a violation of the department's conflict of interest policies. Donnelly stated that Umholtz's report contained " numerous sweeping legal opinions and inflammatory statements" that made the conflicts of interest between Levy, Bruce, and Umholtz apparent. Id. at 110. Donnelly's letter also contained several other instances of allegedly inappropriate conduct by Levy during the course of his employment. Levy was given the opportunity to appear in person to respond to the allegations on February 24, 2009.
Levy stated in interrogatories that he met with Donnelly on February 12, 2009, prior to receiving the termination letter. Levy stated that he told Donnelly at the meeting that other counselors in the division had served as counselors for co-workers without being punished. He also noted that he informed his supervisor about opening Bruce's case in January 2009--" prior to any substantial services being delivered" --and that he transferred Bruce's case to his supervisor immediately when asked to do so. Id. at 140, 143. Levy stated that prior to the February 24th meeting, he asked whether it would be possible for him to resign instead of being terminated. However, Levy said that he did not officially resign until February 25, 2009, after it became clear in his February 24th meeting that Donnelly was planning to terminate him regardless of what he said at the meeting.
B. Procedural background
Umholtz filed suit against SRS on February 11, 2011. Levy joined the suit on March 2, 2011, and Bruce joined shortly thereafter. In the Second Amended Complaint, Levy alleged that SRS had retaliated against him in violation of the ADA. Levy requested reinstatement, compensatory damages in excess of $100,000, and attorneys' fees and other litigation expenses. The plaintiffs later amended their complaint to add Rehabilitation Act claims for Bruce and Levy, and SRS agreed not to oppose the amendment in exchange for the plaintiffs' agreement that SRS had not waived its sovereign immunity defense.
On March 23, 2012, SRS filed for summary judgment on all of Levy's claims. Among other arguments, SRS contended that Levy's ADA claim was barred by the Eleventh Amendment because the Supreme Court had determined in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001), that Congress had not constitutionally abrogated a state's immunity from employment discrimination suits under Title I of the ADA. Although retaliation claims fall under Title V of the ADA, SRS argued that a retaliation claim based on alleged Title I discrimination rendered it subject to the Garrett decision.
SRS also argued that Levy's Rehabilitation Act claim was barred by the statute of limitations. Congress did not specify a federal statute of limitations for the Rehabilitation Act, but SRS noted that this circuit concluded that Rehabilitation Act claims resemble § 1983 claims and that both types of claims can best be analogized to claims for injury to personal rights, for which Kansas imposes a two-year statute of limitations. See Baker v. Bd. of Regents of Kan., 991 F.2d 628, 630-32 (10th Cir. 1993) (citing Wilson v. Garcia, 471 U.S. 261, 276-77, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), which affirmed the Tenth Circuit's characterization of § 1983 claims as similar to personal injury claims for the purpose of applying an appropriate state statute of limitations). Because Levy resigned or was terminated in February 2009 and did not join Umholtz's suit until March 2011, SRS contended that his claims were time-barred. Levy argued in response that SRS waived its Eleventh Amendment immunity for ADA claims by accepting federal funds, and that Rehabilitation Act claims are more appropriately categorized as statutorily created rights governed by Kansas's three-year statute of limitations.
The district court ruled that SRS was entitled to summary judgment on Levy's ADA claim because the claim against SRS was barred by sovereign immunity. Specifically, the district court concluded that SRS did not waive its sovereign immunity for ADA claims through a waiver provision in the Rehabilitation Act enacted four years prior to the ADA. That provision required states who accept federal funds to waive their sovereign immunity for claims under the Rehabilitation Act, Title IX of the Education Amendments Act 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 financial assistance." 42 U.S.C. § 2000d-7(a)(1). The district court noted that the Supreme Court's ruling in Garrett only discussed whether Congress had validly abrogated state sovereign immunity under Title I of the ADA (and by implication, Title I-based claims under Title V) and not whether a state had waived its immunity. Nonetheless, the ...