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