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March 25, 1999


The opinion of the court was delivered by: Katz, Senior District Judge.


Plaintiff Brent Fitzpatrick alleges that his termination by defendant Pennsylvania Department of Transportation (PennDOT) and by a PennDOT County Manager, Carl Tosi, was in violation of various federal and state laws. Before the court is defendants' motion to dismiss the amended complaint.

Factual Background*fn1

As a result of childhood polio, Mr. Fitzpatrick has an atrophied and paralyzed left shoulder and upper arm. See Compl. ¶ 5. He worked at PennDOT for nineteen years, starting in 1978 as a Highway Maintenance Worker. In 1982 he became an Equipment Operator B, a position he held until he was terminated in January 1997. His disability did not affect his ability to do those jobs. See id. ¶ 4. Mr. Fitzpatrick alleges that throughout his employment at PennDOT, he was discriminated against because of his disability. He was denied numerous opportunities for training and advancement, see id. ¶¶ 10, 17-23, and suffered multiple incidents of physical abuse from a supervisor. See id. ¶¶ 12-16, 24.

In November 1996, the events began that soon led to plaintiff's termination in January 1997. He was issued eleven disciplinary notices, the charges in which he claims were false. A series of disciplinary conferences were held to evaluate the accusations. See Compl. ¶ 32. One of the PennDOT officials in charge of the proceedings was the individual defendant in this case, County Manager Carl Tosi. Plaintiff alleges that he was not allowed to present evidence on his behalf or see the evidence against him, and that he was not allowed to attend four of the six conferences. See Compl. ¶ 32-38.

Plaintiff was discharged on January 10, 1997, effective January 17. The reasons given were that he left work early on November 6, that he threatened a coworker and defaced state property on November 8, that he failed to report to the proper worksite on November 7 and 8, and that his attitude and work habits were unsatisfactory on November 7 and 8. See Compl. ¶ 41. These were some of the same charges in the disciplinary notices that plaintiff claims were fabricated.

After Mr. Fitzpatrick's discharge, PennDOT contested his application for unemployment compensation benefits, claiming he was guilty of willful misconduct. After a hearing, the referee found in Mr. Fitzpatrick's favor, and that ruling was affirmed on PennDOT's appeal. See Compl. ¶ 42. After his discharge, PennDOT also denied plaintiff the opportunity to obtain health insurance that he was entitled to by law. See id. ¶ 43. After plaintiff won his unemployment compensation benefits, PennDOT offered him his job back, on the condition that he agree that his time out of work was a disciplinary suspension and that he sign a statement that he had committed the charged offenses. Mr. Fitzpatrick refused to sign that agreement, and he did not return to work. . See Compl. ¶ 44-45.

Mr. Fitzpatrick's complaint in this lawsuit alleges that the disciplinary charges leading to his termination were made in retaliation for his complaints about harassment and about management's discriminatory treatment, which were both based on his disability. See Compl. ¶ 46. He alleges that his discharge, the interference with his receipt of health insurance, and PennDOT's attempt to force him to sign a false statement were likewise retaliatory. See id. ¶ 47-49. The amended complaint contains five counts: a § 1983 claim, a Rehabilitation Act claim, a Pennsylvania Human Relations Act (PHRA) claim, and a claim under the Pennsylvania Constitution against both PennDOT and Tosi, and an Americans with Disabilities Act (ADA) claim against PennDOT only. In the present 12(b)(6) motion, defendants move to dismiss various portions of each claim. The court will discuss each in turn.

Counts I, IV, and V: Eleventh Amendment Immunity

Count I is a § 1983 claim against both defendants PennDOT and Tosi, Count IV is a claim against both defendants under the Pennsylvania Human Relations Act (the PHRA), and Count V is a claim against both under the free speech clause of the Pennsylvania Constitution. Defendants argue that these counts should be dismissed because the Eleventh Amendment bars the claims. Defendants are correct.

The Eleventh Amendment bars suits against a state in federal court.*fn2 That immunity extends to entities that are arms of the state. See Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981) (holding that the Eleventh Amendment covers "department or agencies of the state having no existence apart from the state"). PennDOT is clearly a state agency and thus eligible for Eleventh Amendment protection. See Daye v. Com. of Pennsylvania, 483 F.2d 294, 297-99 (3d Cir. 1973) (holding the Commonwealth and PennDOT immune under the Eleventh Amendment, and that such immunity is not waived by the state's acceptance of federal highway funds); Sitkoff v. BMW of North America, Inc., 846 F. Supp. 380, 383 (E.D.Pa. 1994) (stating that "[t]here is no dispute that PennDOT is the `state' for 11th Amendment purposes"). The Eleventh Amendment also extends to suits for retrospective monetary relief against state officials in their official capacities, and thus protects defendant Tosi in his official capacity to the same extent it protects PennDOT. See Kentucky v. Graham, 473 U.S. 159, 169-170, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985).*fn3

There are two ways that a state may lose its Eleventh Amendment immunity: Congress can explicitly abrogate it in a particular statute, or a state can waive it with regard to a particular statute. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985) ("[I]f a State waives its immunity and consents to suit in federal court, the Eleventh Amendment does not bar the action."); Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976) ("Congress may, in determining what is `appropriate legislation' for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts."). Pennsylvania explicitly reserves its right to immunity from suit in federal court in 42 Pa.C.S.A. § 8521(b) ("Nothing contained in this subchapter shall be construed to waive the immunity of the Commonwealth from suit in Federal courts guaranteed by the Eleventh Amendment to the Constitution of the United States.").

The Supreme Court has held that Congress did not abrogate the Eleventh Amendment in enacting § 1983. See Quern v. Jordan, 440 U.S. 332, 345, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) (reasoning that the statute itself does not include explicit and clear language doing so, nor does its history indicate that intent). Therefore, PennDOT's Eleventh Amendment immunity is intact, and the § 1983 claim is barred against PennDOT and Tosi in his official capacity for money damages. Count I will be dismissed accordingly.*fn4

Likewise, Pennsylvania has not waived its Eleventh Amendment immunity to claims under the Pennsylvania Constitution or the PHRA. The Supreme Court has instructed that "[t]he test for determining whether a State has waived its immunity from federal-court jurisdiction is a stringent one. . . . Thus, in order for a state statute or constitutional provision to constitute a waiver of Eleventh Amendment immunity, it must specify the State's intention to subject itself to suit in federal court." Atascadero, 473 U.S. at 241, 105 S.Ct. 3142 (emphasis in original). The Commonwealth has not done so with regard to state constitutional claims, so that claim is barred. As for the PHRA, the Pennsylvania courts have ruled that the statute waives the state's sovereign immunity, thus allowing the Commonwealth to be sued under that statute in state court. See Mansfield State College v. Kovich, 46 Pa.Cmwlth. 399, 407 A.2d 1387, 1388 (Pa.Cmwlth. 1979). This, however, is not enough to meet the Supreme Court's stringent test for waiver of Eleventh Amendment protections, especially considering that Pennsylvania has by statute specifically withheld its consent to federal ...

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