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February 20, 2002


The opinion of the court was delivered by: Edmund V. Ludwig, United States District Judge.


Defendant Pennsylvania Department of Public Welfare moves to dismiss this action under § 503 of the Americans with Disabilities Act, 42 U.S.C. § 12203, and § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(d).*fn1 Fed.R.Civ.P. 12(b)(6).*fn2 The motion, which is based on the Eleventh Amendment's guarantee of sovereign immunity,*fn3 will be denied.

Congress may abrogate Eleventh Amendment immunity of the States from suits for money damages by private individuals in federal court when "it both unequivocally intends to do so and `act[s] pursuant to a valid grant of constitutional authority.'" Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 962, 148 L.Ed.2d 866 (2000) (quoting Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000)). Here, as in Garrett, it is undisputed that the intentional abrogation requirement has been satisfied.*fn4 The "grant of constitutional authority" for the abrogation assertedly comes from Congress's power under § 5 of the Fourteenth Amendment*fn5 to enforce the right to petition guaranteed by the First Amendment, as applied to the States by § 1 of the Fourteenth Amendment.*fn6

I. Factual Background

After a struggle with a BYDC resident on June 6, 1997, plaintiff was suspended without pay and, upon investigation, terminated, effective July 15, 1997. On November 11, 1997, following various grievance proceedings, plaintiff was reinstated, but his request for limited duty status was denied.*fn7 See Amended Complaint at ¶¶ 22-58. In November, 1997, he filed an internal grievance with BYDC's affirmative action officer, alleging that BYDC's disciplinary actions constituted disability discrimination growing out of his previous injuries. In January, 1998, he filed EEOC and PHRA charges of disability discrimination under Title I of the ADA against BYDC. See Amended Complaint at ¶¶ 59-62. The amended complaint also alleges that after plaintiff was injured by another resident on March 31, 1998, BYDC retaliated against him for his November, 1997 and January, 1998 complaints by arbitrarily terminating his disability benefits, denying limited duty, and excluding him from the premises. See Amended Complaint at ¶¶ 63-91.

II. First Amendment Right to Petition

The amended complaint adequately pleads a violation of plaintiff's First Amendment right to petition.*fn8 The First Amendment right to petition*fn9 protects the filing of EEOC and other administrative charges*fn10 and applies even though the issue does not refer to a matter of public concern;*fn11 it also prohibits various forms of retaliation.*fn12 Moreover, the same analysis pertains to the claims alleged under substantively identical retaliation provisions of the ADA and the Rehabilitation Act.*fn13 The November, 1997 and January, 1998 grievances and charges "opposed [some] act or practice made unlawful by" the ADA, regardless of post — Garrett enforceability questions. 42 U.S.C. § 12203.*fn14 Specifically, these charges opposed employment discrimination,*fn15 including purported denial of reasonable requests for accommodation, "against a qualified individual with a disability because of the disability . . . ." 42 U.S.C. § 12112.*fn16

III. Congressional Abrogation Power under § 5 of the Fourteenth Amendment

Given the pleading of facial violations of the retaliation provisions of the ADA and the Rehabilitation Act — as well as a First Amendment right to petition violation — the question becomes whether Congress thereby has the power to remedy such Constitutional violations. While Congress may secure Fourteenth Amendment rights by "prohibiting a somewhat broader swath of conduct . . . [than is forbidden] by the Amendment's text,"*fn17 § 5 legislation "reaching beyond the scope of § 1's actual guarantees must exhibit `congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.'" Garrett, 531 U.S. at 365, 121 S.Ct. at 963 (quoting City of Boerne v. Flores, 521 U.S. 507, 520, 117 S.Ct. 2157, 2164, 138 L.Ed.2d 624 (1997)). Plaintiff here, however, unlike Garrett, has pleaded a claim arising directly within § 1's "actual guarantees," so that a § 5 "congruence and proportionality" inquiry is not required.*fn18


AND NOW, this 20th day of February, 2002, defendant Pennsylvania Department of Public Welfare's motion to dismiss the amended complaint is ruled on as follows:

1. Motion to dismiss Count I — denied.

2. Motion to dismiss Count II ...

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