Cisneros v. Wilson

jurisdic- left to the Baby another Orozco should be we must consider Finally, Plaintiff request expertise tion and of the Utah courts. about question court an “[i]ssue that the district Johnson Accordingly, the decision is affirmed commanding Defen injunction immediate part, part, reversed in and the case is to Plaintiff.” Baby Orozco dants to return proceedings in ac- remanded for further respect to consideration App. at 23. With opinion. with this cord exercising in the context of request of that held that jurisdiction, we earlier diversity exception bars the

the domestic relations that relief. granting

district court from jurisdiction question

the context of federal request of this that consideration

we feel Baby injunctive an order for return validity deferred until the

Orozco must be applied as adoption statute Utah CISNEROS, Rebecca Plaintiff- by the District Court here is determined Appellant, adoption If the law and on remand. Utah invalid, held application here should be its the federal district court should of course WILSON, Secretary; Heather Cabinet any making custody not undertake Romero, in her individual Christine matters instead adoption ruling. or Those Defendants, capacity, jurisdiction exper

would be within proce If the tise of the Utah courts. Utah val application here are held dure its Children, Depart and Families Youth

id, adoption order would existing then the ment, a branch of the of New as State course not be disturbed. Mexico, Defendant-Appellee. IV America, States of Intervenor. United holding erred in The district court No. 98-2215. the Rooker-Feldman doctrine bar's Plain- dismissing tiffs claims and Appeals, United States Court on that Al- complaint basis. Johnson’s Tenth Circuit. exception relations though the domestic proposed of Plaintiffs remedies bars one Sept. diversity with the exercise of connection Baby

jurisdiction awarding custody of — general to him—Plaintiffs constitu- Orozco adoption to the Utah law challenge

tional not fall within the

and his tort claims do Moreover, exception.

domestic relations ap- abstention doctrine should

plied Plaintiffs constitutional claims. the district court erred

Accordingly, seeking claim a de-

dismissing Plaintiffs invalidity adop- of the Utah

termination of The district court should deter-

tion laws. validity adoption procedure

mine the provides, supra, remand; if Part III application and its here adoption law invalid, making any

should be held concerning

(cid:127)custody adoption ruling

1H5 summary Defendants’ motion for granted claims, holding both judgment on (1) prove: Plaintiff could not that she was “qualified disability” individual with a (2) required by the that she was against retaliated because she had filed charges required by with the EEOC as Title VII. appealed. Following argu-

The Plaintiff intervening Supreme was an' ment there, opinion that was handed down Court January Kimel v. Florida Bd. of 62, 120 Regents, 528 U.S. requested supple- We parties from the and mental memoranda an intervenor. from the Government as and we These have been considered have Amendment, that the Eleventh Dagnall, Dagnall, Rames & determined Donna L. Mexico, Thomas, New for Albuquerque, argument, at oral does which was raised Plaintiff-Appellant. jurisdic- this suit and that we have not bar pursuant to 28 U.S.C. 1291. For tion Mexico, Forney, of New Paula I. State follow, re- part, affirm in reasons we Bureau/RMD, Fe, New Mexi- Santa Legal part, pro- and for further verse remand co, Defendant-Appellee. for ceedings. Silver, Galanter, Seth M. Dunsay Jessica Justice, Department of Wash-

Attorneys, I D.C., the Interve- filed a ington, brief nor. A HOLLOWAY, EBEL, and De- granted

Before the district court Because KELLY, Judges. Circuit summary judgment, fendants’ motion for light in the most view the evidence we HOLLOWAY, Judge. Circuit McGarry v. Bd. Plaintiff. See favorable to (Plaintiff) Plaintiff Rebecca Cisneros Comm’rs, County against action the New Mexi- brought this (‘We (10th Cir.1999) evidence, view the Children, Youth, and Department of co drawn there- all reasonable inferences (Defendant Plain- Department).1 Families from, favorable to the light in the most (1) Department alleged tiff that Defendant nonmoving party..”). disability her her because of terminated 1995, Plaintiff worked From 1984 until (severe anxiety) and acute depression (and Department vari- for the Defendant I the Americans with of Title violation May agencies). ous other state (ADA), 42 U.S.C. Act Disabilities anoth- investigate Plaintiff was ordered (2) 12101-12213, against §§ retaliated wrongdoing. employee possible er the 1964 of Title VII of her violation investigation, days the four During (Title VII), amended, Rights Act Civil “extraordinary” under placed Plaintiff was 2000e-15, §§ because 2000e U.S.C. which caused Plaintiff emotional strain charges had filed of discrimination she May breakdown on suffer a mental Opportunity Employment Equal with the breakdown, Plaintiff had (EEOC). her court 1995. Before The district Commission appealed that App. has not at 31. Plaintiff brought claims various 1. Plaintiff also Department. ruling. employees of Defendant I those claims. See district court dismissed Instead, disability. no mental she was ted a completed request for extended “fully competent” employee “per- who was leave. position.” forming the duties of her After day On the same that Defendant De- breakdown, Plaintiff was unable to Plaintiff, partment Septem- wrote back sought psy- work. treatment from a She 29, 1995, ber charge Plaintiff filed a chiatrist, Ray, Dr. diagnosed who her as alleging EEOC age disability dis- suffering depression from severe and acute Thereafter, crimination.3 on October anxiety. 1995, Plaintiff request submitted a for ex- recover, To allow her sufficient time to pay, tended leave without as well aas on June 1995 Plaintiff filed a request request participate in Defendant De- pursuant Family for leave and Med- partment’s voluntary annual leave transfer (FMLA). ical Leave Act Defendant De- program. With requests, Plaintiff in- partment granted request provid- that cluded Ray letters from Dr. and another of 26, ed Plaintiff leave June from 1995 until doctors, Maestas, Plaintiffs Dr. stating (the 15, September maximum amount that Plaintiff was unable to work. In the Act). of leave authorized that under See requests Plaintiff refused to waive her 2612(a)(1) (providing U.S.C. twelve right to return to an equivalent position. FMLA). weeks of leave under (“I II App. at 182 am unable to comply 1995, early In August Plaintiff requested your with request to my rights waive to forms so that participate she could in De- my position, pay upon and location return fendant Department’s voluntary annual work.”). to program.

leave transfer program That would have allowed Plaintiff to remain on 6, 1995, On November Defendant De- paid leave obtaining donated leave from partment informed Plaintiff that it could employees. other Department Defendant grant not request her for extended leave provide to refused forms directly to without pay because she had not waived Plaintiff counsel; because she had obtained right her to return to an equivalent posi- Department, instead, Defendant told Plain- tion. Defendant Department therefore tiff to attorney have her contact it.2 placed Plaintiff on “absent without leave” 12, 1995, September Around Plaintiff 188; status. id. App. I at 117 wrote Department Defendant requesting (“Failure (employment policy) by the em- 15, that it extend her until January leave ployee report upon work expira- September 1996. On Defendant tion of approved Family/Medical Leave Department back, wrote informing Plain- will result in status, Absent Without Leave department tiff that policy allowed extend- action.”) and may result disciplinary ed leave without pay, only but under two (emphasis in original). Depart- Defendant (1) circumstances: department if the could ment, however, gave Plaintiff five working assure her a position of like status and pay days receipt of the letter to reconsid- at the geographic same upon location re- er her decision not to waive that right. turn, (2) or if department could not Because Plaintiff leave, was absent without assurances, make such but the employee Department Defendant refused to consider waived his or her right to return to such a her request participate in the voluntary position. Department Defendant told annual leave program. transfer Plaintiff that it could not assure her return On November Plaintiff to an filed an- equivalent position and, thus, it could EEOC, other charge grant with the request her this time only for leave if she alleging waived her right Department posi- return to such a Defendant had tion. Department placed Defendant against Plain- retaliated filing her for the first tiff on leave without until pay later, she submit- charge. Two days Plaintiff again 2. Plaintiff did not Sep- receive the forms until pursuing age Plaintiff is not a claim of dis- tember crimination in this action.

1H7 Cir.1997) general rule in (“Although she Department Defendant informed court will is that the an the Tenth Circuit return to right to not waive her would the first an issue raised for time consider Defen- response, position. equivalent sov States’ claim of appeal, United Plaintiff that it was told Department dant exception an immunity presents ereign posi- her dismissing her from considering rule.”); see also Mascheroni v. general After absent without leave. being tion University Regents Board be- correspondence exchanges repeated of Califor nia, Depart- and Defendant Plaintiff tween (“We we are re need not decide whether ment, Department dismissed Defendant to consider merely authorized quired 1995. On on December ap Amendment’s sponte Eleventh sua charge Plaintiff filed another day, same event, because, either plicability law that she had been alleging EEOC whether the clear that consider we pre- filing in retaliation terminated Dr. Maschero- bars Eleventh Amendment EEOC. charges with the vious the Board of state law claims ni’s Regents.”). B precedent and decisions Supreme Court Plaintiff filed On October deciding of this court establish (1) termi- Defendants alleging that action beyond issue is not Eleventh Amendment disability in viola- of her her because

nated grasp and that issue jurisdictional our (2) against retaliated tion of the Motor v. decided. In Ford Co. should be dis- charges filed of she had her because 459, 466, 65 Treasury, 323 U.S. Dep’t of of in the EEOC violation with crimination (1945), 347, the Su- 89 L.Ed. 389 S.Ct. Thereafter, App. I at 1-5. Title See VII. the “conduct” of considered preme Court summary judgment. for moved Defendants in Attorney determin- the' Indiana General 22, 1998, the July App. I at 33. On had waived its sover- ing whether the state motion, granted Defendants’ court district Attorney The from suit. eign immunity (1) not prove: that Plaintiff could holding in both the federal appeared had General with a individual “qualified was a that she appeals the court of court and district (2) ADA, or by the disability” required as merits the suit on the he where defended she retaliated because was she immunity as sovereign raising without as re- charges with the EEOC had filed upon reaching the Su- Only a defense. App. II at 342-44. by Title VII. See quired advance did the state first preme Court timely appeal ensued. This as a bar fed- Eleventh Amendment Despite the jurisdiction. fact court eral II had waited until Attorney General that the A proceedings in stage be- this ultimate immunity as a sovereign de- raising fore argument, Defendants At oral fense, nonetheless declared the Court does argued that the ADA time the first 467, time.” Id. S.Ct. was in “[t]his Eleventh validly abrogate States’ not Amendment, the Court 347. The Eleventh Ordinarily immunity. Amendment concluded, policy and sets “declares an issue in the district to raise failure ju- on limitation explicit an federal forth to this court in the brief opening court and compelling power dicial force v. argument. See Smith would waive arising consider the issue will this Court 1380, Co., 128 F.3d Galvanizing Rogers case even this under Amendment'in Cir.1997) (10th (“Generally, we 1385-86 in this though urged time first was not an issue that will consider not added). (emphasis Id. Court.” court.”), on in the trial raised and resolved Cir.1998). (10th binding. Penn- Co. remains Ford Motor rehearing, 148 F.3d v. however, Hospital & Holder School immunity, hurst State sovereign Claims 8, 104 man, n.99 465 U.S. general rule. exception to that present an (1984) (“The (10th limitation de- Talbot, L.Ed.2d 67 re See In prives jurisdiction any federal courts of of Eleventh immunity. Amendment We claims, may entertain such and thus cannot conclude doing so the state’s any point raised at in a proceeding.”); Pat- conduct sufficiently extraordinary Florida) v. sy Regents Bd. the State finding warrant a that the state effected of 496, 457 U.S. 515 n. 73 a waiver of its sovereign immunity. See (1982) (noting that on remand Garcia Bd. Education the Socorro may the state raise the Eleventh Amend- District, Consolidated School 711 F.2d ment aas defense even though earlier curiam) (per proceedings it solely had on alterna- relied (holding that the state raise the Elev- grounds tive “expressly and had requested enth Amendment as a defense at oral ar- ... pass that we potential on its Elev- gument appeal although it had raised immunity”); enth Amendment Edelman v. sovereign immunity in original its answer Jordan, 651, 677-78, 415 U.S. 94 S.Ct. but defense); then later abandoned that 39 L.Ed.2d 662 see also Regents MacDonald v. Bd. of the University Michigan, decisions of this court and others (6th Cir.1967) curiam) squarely are (per accord Ford Motor (applying Construction, Co. Richins v. Ford reject Industrial Motor Co. to Appellant’s con- Inc., Cir.1974), tention that the filing state’s of an answer we question answered the subsequent “[c]an the Elev waives right to assert Eleventh enth Amendment be waived by the attor immunity). ney general of entering an ap Accordingly, we conclude that we should

pearance and litigating ... ?” case consider Defendants’ Eleventh Amend- by concluding that “it cannot be so waived immunity ment argument. ... absent some extraordinarily effective added); waiver.” (emphasis Id. see also B De Leon Lopez v. Corporacion Insular de concede, As Defendants this court’s re Seguros, 116, (1st Cir.1991) 121 cent Kansas, decision in Martin v. 190 (“[T]he salience provision overrides (10th Cir.1999), F.3d 1120 held that ordinary default; procedural notions of an ADA validly abrogated the states’ Elev eleventh amendment defense enth Amendment immunity. After Mar raised for the first time appeal even on to tin, and after the briefing and oral argu Supreme Court.”); Aerojet-General ment of appeal, this Supreme Court Askew, Corp. 819, v. decided Kimel v. Florida Bd. Regents, of Cir.1971) (following Ford Motor Co. 62, 120 631, 528 U.S. 145 L.Ed.2d 522 hold that “defendants did not waive the (2000), 11, January on 2000. There the right to claim immunity from suit under Court held that Age in Discrimination the Eleventh Amendment to the Constitu Act, Employment 621-634, §§ 29 U.S. did tion defending merits in the not validly abrogate the States’ Eleventh district court” where the appeals court of Amendment immunity. As noted we then on its own motion sovereign raised the requested' briefing further to determine immunity issue for the first time at oral the status of in light Martin of Kimel. argument). We have considered those further briefs

Here, the defendants filed a motion and turn now to our resolution of the to dismiss that did include the defense Eleventh question.4 Amendment 4. We note Supreme that the grant- Court has urge stay States us pending this case ed involving certiorari in a case Court's whether the decision Garrett. in validly ADA abrogates the states’ Eleventh granted The Court certiorari on two earlier University Amendment immunity. See Ala- occasions to question, only resolve the same of Birmingham bama at rett, Bd. Trustees v. Gar- to have the previously cases settle. We stayed of - -, U.S. 120 S.Ct. 146 pending this case the decisions in those cases. (2000). L.Ed.2d 479 Plaintiff and the United uncertainty Given the whether the Court will

H19 C whether Con to determine “In order sovereign the States’ abrogated has gress current Supreme Court’s test The first, questions: ask two immunity, we im of the States’ congressional abrogation ex unequivocally has Congress whether munity under Section 5 of Fourteenth the immuni abrogate pressed its intent originated City Boerne second, has act Congress whether ty, and Flores, 117 S.Ct. 138 521 U.S. power.” a valid exercise pursuant to ed There, municipality L.Ed.2d 624 Florida, 517 Florida v. Tribe Seminole constitutionality of the Reli challenged the 44, 55, 134 L.Ed.2d 116 S.Ct. U.S. (RFRA). Act Restoration gious Freedom alteration, (1996) (citation, and internal 252 response passed RFRA Congress had omitted). As Martin not marks quotation Div., in Employment the Court’s decision passed ed, Congress no doubt there is Oregon v. Resources Dept, ADA it enacted the Human when the first hurdle Smith, “A shall not be 110 S.Ct. 108 State provided: which U.S. (1990), the eleventh amendment immune under had held that a L.Ed.2d 876 which of the United States the Constitution neutral, ordinarily law generally applicable or State court in Federal an action the Free Exercise would not violate jurisdiction for violation competent RFRA, By enacting Congress Clause. 12202; Martin, § chapter.” U.S.C. compelling interest “to restore the sought 1126-27; Rep. H. No. see also 190 F.3d at application in guarantee ... its test and to 101-485(IV), 70, reprinted in 1990 religion is free exercise of all cases where (“Consistent U.S.C.C.A.N. substantially burdened.” U.S.C. set forth Atascadero requirements 2000bb(b). § Scanlon, Hospital v. State Boerne, held that the Court City (1985), this power its had exceeded Congress RFRA not be that a State shall specifies section ”). of the Fourteenth Amend under Section 5 immune 11th Amendment.... under the 5ment: here is whether dispositive issue The exer- ex- pursuant power to a valid under ... Congress Congress’ “acted ADA. power” when it enacted the “enforcing]” provi- cise of only to tends pass pur- the ADA purported to Congress Fourteenth Amendment. sions of the provisions: Ar- suant to Constitutional two power as has described this The Court Clause) (the I, Commerce ticle Section of the Amend- design “remedial.” the Fourteenth Amend- 5 of and Section § 5 are inconsistent text of ment and the (“It 12101(b)(4) § ment. See U.S.C. has Congress suggestion the the ... to invoke purpose [Act] of this the the decree the substance of power the to authority, including congressional sweep of Amendment’s restrictions Fourteenth fourteenth enforce the power the to the States.... com- regulate and to amendment Boerne, at 117 S.Ct. 521 U.S. City of _”). Tribe, 517 U.S. In Seminole merce (alterations protect To original). Supreme the Court at S.Ct. by attempts Con impermissible validly abrogate cannot Congress held that the substance gress determine immunity Eleventh state’s Amendment, the Court Fourteenth Therefore, powers. Article I under its proportionality and adopted congruence validly abrogate Congress could and congruence must be a “There test: immunity, if Eleventh Amendment States’ injury be proportionality between all, 5 of only pursuant Section and the means remedied prevented or Amendment. Fourteenth Fourteenth Amendment 5 of the in a 5. Section actually question this decide the time Congress shall have here, provides "[t]he stay dispositive we decline manner enforce, legislation, by appropriate power to again. case this provisions of this article.” 520,117 adopted to that end.” Id. Congress’s power S.Ct. exercise of under Sec- tion 5. See id. at 117 S.Ct. 2157. congruence proportional- Under this and applied The Court congruence and test, ity appropriateness “[t]he of the re- proportionality again test two terms later medial measure must be considered in in Prepaid Florida Postsecondary Edu light 530,117 presented.” of the evil Expense Id. at cation College Bd. v. Savings Bank, “Strong appropriate S.Ct. 2157. measures 527 U.S.

to one harm be an unwarranted re- L.Ed.2d 575 There the Court ad another, sponse to lesser one.” Id. The dressed whether the Remedy Patent Act Court therefore looked legisla- first to the validly abrogated the states’ Eleventh history tive RFRA to determine immunity. the Amendment Following City of Boerne, extent of the According “evil.” the Court held that it “must first Court, legislative “RFRA’s identify record lacks the Fourteenth Amendment ‘evil’ examples of modern generally ‘wrong’ instances of or that Congress intended to rem ” applicable passed edy laws because .... religious Prepaid, Florida 527 U.S. at 639-40, bigotry.” Id. at S.Ct. 2157. 2207. With the Pat Thus, legislative history Remedy ent Act Congress sought did not dem- to reme dy the pattern practice infringement patents onstrate a States’ of unconsti- their sovereign tutional action use of immunity and therefore it deny did not patent compensation holders demonstrate a particularly pernicious for the See, infringement. “evil.” “In e.g., id. See id. enacting the Act, however, Patent Remedy Congress “Regardless of the legisla- state of the pattern identified no patent infringe record,” tive the Court held that “RFRA States, ment let pattern alone a remedial, preventive cannot be considered constitutional violations.” Id. The Court legislation, if those terms any are to have said: meaning”: legislative record ... suggests legislation Remedial under 5 should Remedy Patent Act does not adapted to the mischief and wrong respond history to a “widespread which the Fourteenth Amendment was persisting deprivation of constitutional protect intended to against. rights” of the Congress sort has faced in RFRA is not so confined. Sweeping enacting proper prophylactic § legisla- coverage ensures its every intrusion at Boeme, City tion. 521 U.S. at level of government, displacing laws and Instead, 117 S.Ct. 2157. Congress ap- prohibiting official actions of almost ev- pears to have enacted legislation ery description regardless subject response to a handful of instances of matter. patent infringement that do not Id. at 117 S.Ct. 2157. RFRA failed necessarily violate the Constitution. the “congruence and proportionality” test: Though the support lack of legis- The stringent test RFRA demands of determinative, lative record not see id. state laws reflects a lack proportional- of 531, 2157, 117 S.Ct. identifying the ity congruence or between the means targeted constitutional wrong or evil is adopted legitimate and the end to be still a part § critical of our 5 calculus achieved. If an objector can show a because “[sjtrong measures appropriate exercise, substantial burden on his free to address one harm may be an unwar- the State must compel- demonstrate a response another, ranted lesser one.” ling governmental interest and show 530, Here, id. at 117 S.Ct. 2157. the the law is the least restrictive record at support best offers scant for of furthering means its interest. Congress’ conclusion that States were 533-35,117 Id. at Accordingly, S.Ct. 2157. depriving patent property owners of the Court held that RFRA was not a valid process without due of law pleading

H21 L;Ed.2d (2000);8 Coolbaugh v. Louisi 522 pat- immunity in federal-court sovereign (5th Cir.), ana, cert. 430, 136 438 F.3d ent actions. denied, 819, 58, 119 142 525 S.Ct. U.S. (alteration 645-46, at 2210 Id. 119 S.Ct. California, (1998); Clark v. 45 L.Ed.2d evi there was little Because original). in (9th 1267, Cir.1997), cert. 1270 123 F.3d by the constitutional violations dence of Armstrong, Wilson v. denied sub nom. states, provisions the held the Court 2340, 937, 141 L.Ed:2d 524 U.S. 118 S.Ct. Act were “out of Remedy the of Patent (1998). circuits, including-ours, 711 Most pre supposed a remedial proportion to validly abrogated ADA the held that the Prepaid, 527 object.” Florida ventative immunity.9 Amendment Eleventh States’ 646, 119 at 2210. S.Ct. U.S. essentially the same circuits followed The' Boerne,6 of cir City a number After of this court used Martin. approach that circuit, applied the con cuits, including our principle In Martin we relied on three the test proportionality gruence ADA University Ala distinguish reasons v. ADA.7 See Garrett of Trustees, the ADA was de Bd. 193 RFRA. We first held Birmingham bama at of (11th Cir.1999), remedy strong “evil” or cert. signed to 1214, 1218 F.3d — Martin, 1669, 190 F.3d at 1127- U.S. -, “wrong.” 146 120 S.Ct. granted, City Cle California, Supreme The Court Dare v. (2000); L.Ed.2d 479 Center, Living (9th Cir.1999), burne v. Cleburne 473 U.S. petition 1167, 1174 191 F.3d 3249, (1985), (U.S.2000); 432, 87 L.Ed.2d 313 105 S.Ct. filed, cert. 3566 68 U.S.L.W. Martin, v. had 1127-28; Equal Protection Muller Clause 190 F.3d at held Costello, (2d Cir.1999); discrimination Ki prohibited arbitrary F.3d 298 187 Martin, 190 F.3d at 1128. Regents, 139 F.3d Florida Bd. disabled. mel v. Cleburne, (11th “Thus, are on other Cir.1998), under disabled 1426, 1433 aff'd Amendment, and 631, 62, protected by 145 Fourteenth 120 grounds, 528 U.S. S.Ct. - at-, -, basis, Boeme, 120 U.S. had ferent see the Seventh Circuit held 6. Before 631,'640. t Supreme also The abrogated S.Ct. at Court Congress validly states’ tha ques to resolve the ADA granted immunity it en certiorari Amendment when Eleventh Dickson, tion, Dept. v. Florida Corrections Dep’t see v. Indiana the ADA.See acted Crawford U.S. -, 976, Corrections, 481, (7th S.Ct. 145 120 L.Ed.2d writ after the Cir. 487 - (2000), dismissed the 1997). 926 but - -, case, 120 parties settled L.Ed.2d applied S.Ct. Supreme 145 Court 7. We note that Pennsylvania Dept. ADA to the states ADA did Eighth held that the Circuit Yeskey, 118 S.Ct. 9.The 524 U.S. v. Corrections Court, validly abrogate the states' Eleventh not 215 L.Ed.2d 141 City immunity. however, See Alsbrook v. 999, Amendment question whether reserved Maumelle, Cir. 1010 Congress’ power Section under ADAexceeded 1999) (en banc), granted part, - U.S. cert. See id. at Amendment. 5 of the Fourteenth 212, -, 146 L.Ed.2d ("We cert. do address S.Ct. 1952 dismissed, - U.S. -, presented by petitioners: another issue Nebraska, (2000); DeBose v. pris application of the ADA to state whether (8th Cir.), republished at 207 Congress’s F.3d exercise ons is constitutional (8th Cir.), filed, 68 petition cert. F.3d power ... 5 of the under Fourteenth (Dec. 1999). Panels Amendment.”). U.S.L.W. 3391 question. split on the have Fourth Circuit Maryland Dep’t Public Compare in Kimel held that Amos Circuit 8. The Eleventh Services, Safety and Correctional validly abrogated States’ Congress had (holding ADA that the immunity when it Eleventh validly the States' Eleventh Amend abrogated passed it passed but not when grounds, immunity), on other petitions vacated separate ment parties filed ADEA.The Cir.2000), v. with Brown Su- 205 F.3d 687 involving the statutes. The certiorari Vehicles, Motor Division petition certiora- Carolina preme granted the North Court 698, (holding 1121, claim, 525 U.S. 119 ADEA see ri on the validly abrogate the 902, (1999), 901, did not and ADA L.Ed.2d 901 142 S.Ct. immunity). Circuit, Amendment States' Eleventh on a dif- Eleventh albeit affirmed the 1122

Congress protec- (cit- is entitled to enforce this Equal Protection Clause. See id. Moreover, tion against the states.” Id. ing Gregory v. Ashcroft, 501 U.S. 111 ADA, “Congress, it when enacted the (1991); 115 S.Ct. L.Ed.2d 410 Vance made numerous findings fact regarding Bradley, 440 U.S. 99 S.Ct. pervasiveness against discrimination (1979); Massachusetts Bd. of at persons.” disabled Id. Murgia, Retirement v. 427 U.S. “evil,” light strong of this (1976) ADA S.Ct. 49 L.Ed.2d (per “congruent proportional.” See id. curiam)). More importantly, the Court that, at 1128. We held “[t]he Act only age noted that discrimination victims were prohibits against discrimination ‘qualified not a discrete class and therefore claims of individuals,’ requires only and it ‘reason- subject discrimination were only to able impose accommodations’ do not Kimel, rational basis review. S.Ct. an ‘undue burden’ employer.” on the Id. 645-46. The Court highlighted impor- Martin therefore concluded that: tance of the of scrutiny nature ap- RFRA, The unlike is not at- plied by the courts:

tempting impose a strict scrutiny States discriminate on the basis standard on all state laws or actions in of age without offending the Fourteenth the absence of evidence of discrimina- if the age classification in Rather, tion .... ADA to im- seeks question is rationally related pose legiti- to a a scheme adequately pre- that will mate state vent interest. remedy rationality well-documented problem of commanded by discrimination without undu- the Equal Protection ly burdening prison system. Clause does not require States subjects It some laws and official ac- match age distinctions and the legiti- tions to a “reasonable accommodation” mate they interests serve with razorlike requirement only point that the precision... contrast, .In when a State unduly accommodation is not burden- discriminates on basis of race or scheme, some. RFRA, Such unlike gender, we require a tighter fit be- does expand not redefine or [disabled tween the discriminatory means and persons’] protections, constitutional but legitimate they ends serve. Under simply proportionally acts to remedy Amendment, Fourteenth a State prevent documented constitutional may rely on age proxy as a for other wrongs. abilities, qualities, or characteristics (citation Id. quotation internal marks that are relevant to the legiti- State’s omitted) (alteration original). mate interests. The Constitution does preclude not reliance on such general- D izations. Martin,

After our decision in the Su preme Court in January analyzed (citations (alterations omitted) Id. at 646 whether validly the ADEA abrogated the original). States’ Eleventh Amendment immunity in The Court then considered the ADEA Kimel, 631, 645-50, 528 U.S. “against backdrop” of the Equal Pro 145 L.Ed.2d 522 in City As tection Clause and held that the Act was Boerne and Prepaid, Florida the Court proportion “so out of to a supposed reme again applied congruence and propor preventive dial or object that it cannot be tionality test. City Unlike Boerne and to, responsive understood as or designed Florida Prepaid, however, Kimel, prevent, unconstitutional behavior.” Id. S.Ct. at the Court focused its atten Boerne, at 647 (quoting City tion on the Equal Protection Clause. The 2157). had, first Court noted it Specifically, three previous occasions, unlawful, ADEA age held that discrimi “makes in the employ nation claims did context, establish violations of ment all discrimination] remedies, have and we never powerful individ- ... because any individual § from precludes Congress held that (quoting U.S.C. age.” See id. ual’s (alterations 623(a)(1)) Ac- original). prophylactic in enacting reasonably legisla- Act, broad through its whether cordingly, “[t]he tion. Our is to determine task age as discrimi- the use of a just appro- restriction in such an the ADEA is fact factor, substantially more prohibits nating or, instead, merely an priate remedy practices employment decisions state attempt substantively redefine the held unconstitutional likely would than legal obligations respect with State’s protection, ra- applicable equal under by means age discrimination. One Kimel, 120 at standard.” tional basis made such a determina- which we have 647. past by examining tion in is containing the legislative record reasons exceptions ADEA’s The Court said appropri- action ... “The Congress’ problem. Section solve did of remedial measures must be ateness 623(f)(1) rely on employers to does allow present- evil light considered of the occupational fide it “is bona age when appropriate to “Strong ed.” measures [BFOQ] reasonably necessary qualification re- harm be an unwarranted one particular operation normal another, one.” sponse to lesser Kimel, This 120 S.Ct. business.” however, defense, cry “a far from was Kimel, (quoting City at 649 120 S.Ct. apply age we standard rational basis 2157). Boeme, 117 S.Ct. 521 U.S. Equal under the Protection discrimination “[ujnder Moreover, rec- legislative examined the Id. The Court Clause.” defense, BFOQ ADEA, “Congress even with its never ord and concluded unlawful.” age prima use of State’s age discrimination any pattern identified facie ADEA thus starts Application of the Id. States, any much less discrimina- by the requiring presumption favor with a to the level of that rose tion whatsoever to make an individualized employer Id. 648^49. constitutional violations.” determination. best, of discrimination At the evidence “isolated sentences the States consisted the ADEA noted that The Court next legislative clipped floor debates (§ 623(f)(1)) employers engage allows plainly was insufficient. reports,” which by the Act prohibited behavior otherwise Finally, although the Court See id. at on rea- is based the differentiation “where Congress fact that “found accepted the Kimel, age.” than factors other sonable in the pri- discrimination age substantial Constitution, at 648. “Under sector, held that this evi- Court vate contrast, age as a may rely on States “Con- point,” since dence was beside Id. This other characteristics.” proxy for respect findings made no such gress “merely confirms therefore defense Kimel, “A at 649. review to the States.” ADEA, has effec- through the Congress, record legislative the ADEA’s analyzing tively elevated the standard whole, then, Congress had reveals that scrutiny.” heightened age discrimination to believe virtually no reason Id. unconstitu- were governments and local ADEA that “the concluded The Court their discriminating against eim tionally likely to be very little conduct prohibits Congress’ age.... on the basis ployees said Id. Court held unconstitutional.” pattern significant any uncover failure to fact, that this here con- discrimination of unconstitutional be- had no reason to Congress firms provide does not alone significant, while legislation prophylactic that broad lieve Difficult inquiry. § 5 to our the answer Id. at 649-50. in this field.” necessary require problems and intractable often 1124

Accordingly the in Court Kimel held For reasons we will explain, we are ADEA validly abrogate did not persuaded by Kilcullen, views in the the States’ Eleventh Amendment immuni- Erickson, Judge dissent of inWood and ty- Judge opinion. Kimball’s Davis We feel that Martin’s validity conclusion on the

E the ADA’s abrogation of Eleventh Amend Second, Third, immunity The ment and Seventh remains sound Circuits and need analyzed have now be altered analysis whether Kimel re because quired previous them to revise their Kimel. Our rul reasons follow. ings concerning the ADA and the Eleventh opinion The Second Circuit’s concerned Amendment. These courts have reached an epilepsy victim learning with a disabili- contrary conclusions. Compare Lavia v. Kilcullen, ty. 205 F.3d at 77. His suits Pennsylvania Corrections, Dep’t 224 ADA, under the the Rehabilitation Act and (3d Cir.2000); F.3d 190 Erickson v. Bd. of New York challenged law his discharge Colleges Governors State and Universi from the Department New York of Trans- Univ., ties Northeastern Illinois 207 portation under both the federal and state (7th Cir.2000) (“The F.3d 948 Su laws and alleged application forms of preme opinion Court’s in Kimel calls all of Department ADA, violated the Section these decisions question, into think we Act, 504 of the Rehabilitation and New it analyze subject best to afresh rather York by law also posing questions about than to pre-Kimel rehash conclusions in disability. his His suit was dismissed on circuit.”), and out of this Cooley ground that the Eleventh Amendment

Mississippi Dept. Transp., 96 bars federal courts from considering (S.D.Miss.2000) (“De F.Supp.2d claims provi- States under the spite contrary Kimel, its holding prior to sions in question. The opinion Kilcullen that, predicts this Court if faced with this dealt with an appeal of one of Kilcullen’s issue again, the Fifth Circuit would follow suits. reasoning similar to that of the Seventh rejected Second Circuit the State’s Circuit and hold that states are immune analysis and held that agencies are from damages ADA.”), suits under not immune from suit in federal court to with Kilcullen v. New York Dep’t State enforce rights guaranteed in Section Labor, (2d 504 of the Rehabilitation Act. The Rehabil- (“[T]his court already has determined that itation Act of 1973 and the 1992 [the ADA legitimate legisla remedial while not absolutely congruent in their protestations tion]. New York’s notwith other requirements, impose do identical standing, that decision is controlling obligations Kilcullen, on employers. here.”) (citation omitted). Kimball, Judge F.3d at n. 1. Kilcullen noted the two one of our Tenth Circuit District Judges part test set forth in Seminole Tribe of has recently a scholarly survey made Florida, Florida v. 44, 55, 517 U.S. this law and has held the ADA’s abroga (1996), tion of state Eleventh Amendment immu determining whether an act of Congress valid, nity following our Martin holding. validly abrogates States’ sovereign immu- Comm’n, Davis v. Utah State Tax (1) nity: Congress must unequivocally ex- (D.Utah 2000) F.Supp.2d (“The press its intent to abrogate the immunity; Kimel Court merely applied previous (2) Congress pursuant must act to a tests that it had announced in Seminole provision constitutional granting it Tribe and refined in City Boeme. Be power Kilcullen, to abrogate. 205 F.3d at cause the Tenth applied Circuit very test that Kimel requires, Martin is still good law that must be followed As to above, the second prong set out court.”). Kilcullen said that Supreme recent Court

H25 (2d Costello, may ler v. Congress has clarified precedent Cir.1999)). immunity Kilcullen concluded sovereign abrogate State not it but ADA powers, provisions I in the Article identical light to its pursuant of the Four- Act, to Section pursuant single ques- do so Rehabilitation and the its enforcement and Amendment teenth review and held presented for was tion York conceded New granted. there power the “validly abrogated Congress that Congress’ expression unequivocal the the suit under both from immunity States’ immuni- sovereign State abrogate intent to the Rehabilitation 504 of ADA and Section Seminole the second that ty, argued but Kilcullen, at 82. 205 F.3d Act.” Con- not met since was requirement Tribe Governors, 207 Bd. In Erickson v. a valid acting pursuant not gress was (7th Cir.2000), Cir- the Seventh pow- 5 enforcement of its Section exercise alia, I held, Title of the that inter cuit Act. adopted the Rehabilitation when it ers Fourteenth the does not “enforce” ADA argued York later New specifically More Eleventh and therefore the Amendment invalid be- abrogation was Congress’ that in the courts bars suit federal Amendment developed a sufficient yet had cause it not of the States. and arms the States against demonstrating the Reha- record legislative noted opinion Erickson majority The to enforce appropriate was bilitation Act concerning the findings legislative the that Kilcullen, Amendment. the Fourteenth one word about “contain not ADA reject- at 80. The Second Circuit legisla- that at and governments,” id. to consideration objection New York’s ed Kimel, statements, consist “al- inas tive legisla- accumulated subsequently clipped sentences entirely of isolated most the whether when it assessed tive record reports.” legislative and floor from debates remedial Act constituted Rehabilitation 649). The Kimel, been 120 S.Ct. always (quoting “have Courts legislation. Id. that con- beyond majority therefore evidence free to consider Seventh Circuit rec- legislative in the the is contained does not enforce which that the ADA cluded Broadcasting Sys- Turner Id. See private ord.” and Amendment Fourteenth 180, 200, FCC, tem v. is blocked the States litigation And 137 L.Ed.2d Erickson, federal courts. Circuit, statement noting the Second dissented, criti- finding Judge Wood 646,119 S.Ct. U.S. at Prepaid, 527 Florida and the the ADEA distinctions between cal legisla- support in the “lack of she articu- which cogent reasons ADA. For determinative,” conclud- is not tive record ADA that the lates, concludes Judge Wood “has never Supreme Court ed that Congress’s exercise of permissible awas requirement procedural established in the ample support with power Section its reasons in detail document Congress to de- It convenient record. legislative Kilcullen, 205 statute.” adopting later Judge reasoning Wood tail F.3d at 80. Lavia Third Circuit’s we discuss after not remains question “The ultimate opinion. leg- created a sufficient Congress whether Pennsyl- Lavia, a Commonwealth whether, given record, but rather islative employee Department vania Corrections Court, it before of the information all termination harassment alleging sued can question that the statute appears suffered Lavia had employment. his legiti- characterized appropriately diagnosed had been from a seizure Id. Kilcullen legislation.” mate remedial Lavia of the brain CNS Vasculitis legislative examining “the concluded that him “dis- rendered alleged his condition hearings compiled in its Congress record reinstatement, dam- sought He abled.” deter- already has this court ADA, the under the other relief ages and twin these substance- of mined and the Act Rehabilitation Vocational ADA and Rehabilitation [the statutes Act. Relations Pennsylvania Human (citing Mul- can be characterized.” Act] so latter claim dismissed the District adopted means to that end.” (quoting Court under the Eleventh Amendment Boerne, but City from 519-20, 521 U.S. at the federal 2157). claims. The Common- 117 Judge pointed Wood out appealed, wealth challenging Lavia’s claim that majority opinion Erickson “ig under the ADA. express nores the holding of Kimel that ‘we have never held that pre section 5 The Third Circuit focused on the validity Congress cludes enacting reasonably Congressional abrogation of the Elev- prophylactic legislation.’ 120 S.Ct. at 648.” enth immunity of the Com- 207 F.3d at 955. monwealth. The court held the first re- quirement abrogation by was met the Judge Wood’s dissent found critical dis- express statement of the ADA on abroga- (which tinctions between the ADEA Kimel held, however, tion. It was that the Con- invalidly attempted held have to abro- gress did not act in doing so within the gate Eleventh Amendment immunity) and proper of power. exercise its I Article ADA, which Judge Wood found in valid powers, including those under the Com- abrogation its the immunity. of She said Clause, merce do support not abrogation. Kimel observed persons that older have power Section 5 to enforce the Fourteenth subjected been to a history of purpose- Amendment was held unavailing also. The ful unequal treatment. Id. at 956. Judge opinion Lavia said that Congress since is pointed that, contrast, Wood out in Con- only authorized to exercise its Section 5 gress found the ADA that per- disabled power remedy constitutional violations sons have been subjected a history of by States, by private and not members purposeful unequal treatment in critical society of and the community, and because areas such employment, as transportation, there is violations, evidence of no State communication, recreation, institutionaliza- Congress not validly did abrogate the tion, services, health voting, and access to States’ Eleventh immunity. public services. Id. at 956. Thus in the F.3d at 203-05. ADA’s statement of “Findings,” Congress Lavia Judge dismisses Wood’s as views provided a litany of areas in which it found merely “forceful and interesting” but says disabled suffer discrimination.10 they do not call for a different result than For purposes of deciding whether Con- Lavia’s invalidation of the ADA abroga- gress validly abrogated state sovereign im- provision. tion 224 F.3d at 205-06. We munity in enacting the Congress’s disagree. “Findings” especially are significant for the extent to persuaded

We are which by several of its of enumer- dissent Judge Erickson, ated areas largely, Wood in are 952-61, or id. at even entirely, and not the domain instance, Erickson the states. majority For opinion byor Congress Judge Lavia. found that Wood discrimination considered and exists discussed length, Kimel at “education.” As Judge noted Wood et seq., concluding Erickson, dissent in “Congress legiti- “Education in this mately power its country used under is overwhelmingly section an enterprise of the Fourteenth Amendment when it and government,” made state local and that a the ADA applicable to ninety full percent states.” Id. of elementary and sec- 954. She noted requirement ondary school students attend public Prepaid, Florida 635-37, Erickson, 119 schools. 207 F.3d at 957 n.& 3 S.Ct. at (Wood, J., there “must be a con- dissenting). Given the clear gruence proportionality and public between the education, nature of agree we with injury prevented to be remedied Judge Wood that inclusion “edu- 10. 42 pertinent U.S.C. part: accommodations, states in education, transportation, finds., Congress "The communication, against recreation, discrimination institutionaliza- tion, individuals persists services, disabilities voting, health and access to critical employment, housing, areas public public services ...”

H27 concludes Judge Wood The dissent Congress in which the areas among cation” other reasons demonstrate these and the disabled that against discrimination found ADA a exercise finding permissible congressional demonstrates that the power, Congress’s section discrimination. different- quite and the ADEA “fare ADA is not “education” inclusion of The analysis re- proportionality under the ly Judge Wood’s As regard. in this unique Erickson, by Boeme and Kimel.” quired demonstrates, enumer- Congress’s dissent (Wood, J., dissenting). at 956 “health ser- “transportation” ation of reasons that it was broad dissent state and vices,” heavy entail of which both that caused Su- sweep of the ADEA involvement, likewise government local propor- it was not a Court to preme find that the finding congressional represents problem age response to the dis- tional in discrimination engage themselves states (the all prohibiting ADEA crimination nn. Id. at 957-58 & the disabled. on the basis employment discrimination J., (Wood, dissenting). protect- persons over age against of areas of discrimination list Congress’s class, only tempering limited with ed predomi- or largely to those is not limited employer an restriction where shows the litany the states. by controlled nantly all or believing basis a substantial unambigu- that also includes those of areas given age a nearly employees all over domain the ously under exclusive are or because individual qualifications lack regard we note Con- In this the states. impractical). Id. 957. testing highly is are sub- finding that the disabled gress’s points contrast, dissent Judge Wood’s As the “voting.” in ject to discrimination approach nuanced ADA’s the “more the exclusive is within conduct of elections disability discrimination.” problem states, decision Congress’s purview of the on making distinctions employer An Id. a demonstrates “voting” again to include that disability only need show basis of by finding of discrimination congressional steps of accommodation will reasonable the States. §§ work. See U.S.C. contrary to Lavia’s that conclude We conclusion that leads to the dissent’s This legislative a that the statute lacks holding part first ADA meets Kimel’s findings of dis- history congressional or analysis proportionality. — by the disabled against crimination 955-57. findings states, make Congress did fact the second then considers The dissent delineated Having of state discrimination. legislative question Kimel —whether discrimination by infected areas state age dis- pattern reveals either record disabled, properly Congress against or by the states crimination committed prevent the recur- remedy and sought to [rises] discrimination whatsoever “any See discrimination. rence of such Id. violation.” of constitutional the level 12101(a)(4) (“[Ujnlike individuals § U.S.C. record is found legislative at 957. The discrimination experienced who have findings pertain- sparse on admittedly color, sex, origin, race, national basis The dis- specifically to behavior. ing expe- have who religion, age, individuals however, focuses, on the fact that sent basis of dis- on the discrimination rienced that “in- Report notes re- ... the House legal recourse to had no ability often dis- so, people with ”). treatment of consistent ... To do discrimination dress local gov- state or by different abilities states’ sov- validly abrogated the Congress inequitable and is both agencies ernment power un- invoking its immunity by ereign 101-485(11), H.R.Rep. No. illogical.” proportionate in a manner der Section Admin. News Cong. U.S.Code & Congress congruent violations congres- express importantly, Kimel, 120 More had identified. pervasive respect with findings sional 631,145 L.Ed.2d many discrimination address areas ADA validly abrogated Eleventh Amend- significant are controlled to a de- immunity ment so that Plaintiffs ADA gree by governments. state and local against claims the defendants are not example, Congress For dis- barred the immunity. identified particu- crimination in education as a problem. lar . Ill Education this country is over- We review de novo the district whelmingly enterprise an of state and grant court’s summary judgment to de government. local Another sector sin- termine whether it correctly applied the gled out the statute was health ser- whether, law and viewing the evidence in vices, in which state and local govern- the light most favorable to the non-moving ments also play powerful role. The party, genuine there are no issues of mate story transportation, similar for which rial fact. See United ex rel. States 12101(3). is also mentioned Con- Hafter v. Spectrum Care, Inc., Emergency gress’s specific attention to sectors 1156, 1160 Cir.1999). such a substantial state and gov- local presence ernmental indicates it argues vigorously that Defen knew government action at dants caused her disability and otherwise state level was an important pari discriminated her because of her problem it addressing. disability.11 Appellant’s Brief In Chief added). Id. át (emphasis Moreover at' however, 12-16. The does not points dissent out that other evidence prohibit all disability discrimination. In the Kimel Court found lacking for the stead, the Act bars only discrimination ADEA—“a record of discrimination that against a “qualified individual with a dis reveals constitutional pres- violations—is ability”: “No covered entity shall discrimi ent abundance for the ADA.” at 958. Id. nate against a qualified individual awith findings cited the dissent are re- disability because of disability of such produced in Appendix opinion. individual in regard terms, to ... [the] noted, As in Davis v. Utah Tax State conditions, and privileges employment.” Commission, (D.Utah 96 F.Supp.2d 1271 12112(a) § 42 added). U.S.C. (emphasis 2000), Judge Kimball thoroughly analyzed Therefore, even if Defendants discrimi the Eleventh Amendment issue. He against Plaintiff, nated if Plaintiff was not agreed, do, as we with the dissent of Judge “qualified a individual with a disability,” Wood in Erickson and analy- restated her then ADA provides no redress for that length. sis at We need not repeat his See, wrong. e.g., v. Smith Blue Cross Blue views, recitation of her and merely, note Shield, (10th 102 F.3d Cir. agreement our with the analysis laid out in 1996). opinion Davis on the Eleventh Amend- The term “qualified individual ment with a express issue. We no view on other disability” “an issues means which the individual with a opinion Davis dis- deals with. who, ability with or without reasonable sum, from our consideration of Kimel accommodation, perform can the essential and the subsequent opinions we have ana- functions position employment lyzed above, Kilcullen, Judge Wood’s dis- ” such individual holds or desires.... 42 Davis, sent in Erickson, and we are con- 12111(8). § U.S.C. This court has adopted vinced that this opinion court’s in Martin a two-part test for determining whether a remains sound no subsequent Su- person disabled meets that requirement: preme Court or precedent other calls for us to revise the First, conclusions expressed we must determine whether the therein. Accordingly, we hold that individual perform could the essential purposes For the appeal, of this Defen- abled. We part therefore do not address that Plaintiff, fact, dants concede prima is dis- of case. facie

H29 a re accommodation—such i.e., “reasonable” functions that job, functions sufficient relationship employee allow an marginal may quest than a more bear (but Second, only if or illness injury from an job at issue. to recover time if) is not individual that the employee perform we conclude can that the functions the essential perform (i.e., able job attend functions of essential whether determine job, we must work) Pt. in the future. See C.F.R. by the accommodation any reasonable Interpreta Appendix to Part 1630— perform him to employer would enable I of the to Title Guidance tive functions. those 1630.2(o) possible accom (Examples of Telecommunications v. MCI Hudson the use of “permitting include modations Cir.1996) (10th F.3d Corp., 87 additional paid providing leave or accrued (citation marks quotation and internal treatment.”); necessary unpaid leave omitted); v. York Int’l White see also Co., Pepsi-Cola v. Taylor also see Cir.1995) (10th 357, 361-62 Corp., 45 F.3d (“An (10th Cir.1999) allowance (same). as to whether “The determination treatment care or of time for medical individual with ‘qualified is a individual an accommodation.”) reasonable a constitute time of as of the disability’ must be made (citation marks quotation internal v. St. Nowak employment decision.” omitted); v. West Communi Rascon U.S. Sch., High Rita cations, Inc., F.3d Smith, Cir.1998); F.3d at 1077 see also Hudson, rule); (stating the same proposition).12 (stating similar proposi (stating a similar F.3d at 1168 above, Plaintiffs As demonstrated tion). attending her from disability prevented However, ‘reasonable term “[t]he an “essen generally Attendance is work. accommo refers to those accommodation’ Nowak, 142 any job. See function of tial” in the near presently, which dations employee who (“Obviously, an at 1003 perform the employee to enable the future, perform cannot to work not come does Hudson, 87 job.” of his essential functions job.”); Rogers functions of his essential (citation quota and internal F.3d at 1169 Inc., Terminals, 87 F.3d Marine Int’l omitted) added); (emphasis see marks tion Cir.1996) (“[Ajn (5th element essential 759 (4th Hose, 283 F.3d Myers also 50 for work ability appear any job is an Cir.1995) proposition). (stating the same ....”) alteration, (citation, internal leave omitted). Indeed, request a for indefinite Accordingly, Plain marks quotation (cid:127) accommo ordinarily constitute “reasonable” that attendance cannot concedes tiff al Ap does not job. request her See a leave function of dation —such an essential at 11. the essential perform Brief In Chief employee pellant’s low the near job functions of future.13 perform an es- Plaintiff cannot Because however, she did suggests, we must position, of her function sential Appel leave. See request not indefinite accom- reasonable any whether “determine Instead, she 16. Brief In Chief at lant’s employer would enable by the modation time: period of leave for a finite requested Hud- functions.” perform those [her] January 1996. November 1995 from son, well-settled at 1168. It is F.3d 87 Plaintiff, she there According to a id. may lead to See request a leave employee who an Thus, employer to accommodate that Plaintiff is evidence Defendant's allowing him an prolonged illness suffers a relevant to the not unable to work is still absence.”); see also Mitch- leave of "qualified indi- indefinite a question whether she was Dist., 190 Washingtonville Cent. Sch. of the ell v. disability” at the time vidual with Cir.1999) (2d (stating a similar F.3d challenged discrimination. Co., Inc., v. & S Oil proposition); Watkins J (similar); (1st adopted re- similar circuits have Other Dunlop Corp., 120 Nowak, Tire Duckett v. at 1004 quirements. See Cir.1997). Cir.) ("The require an ADA does requested fore “reasonable” presented accommoda no evidence of expected du- pursuant tion to this precedent. court’s complete ration of disability”). her See, e.g., id. The district correctly court con Contrary to argument, Plaintiffs that, Hudson, cluded as in Taylor, and required employee court has an provide Smith, prove Plaintiff failed to expect an expected duration impairment ed duration of her illness and thereby the (not the duration of the request). leave “reasonableness” of her request for leave. Hudson, (“This See 87 F.3d at 1169 court (“Because II App. at 342 she has not agrees plaintiff that a reasonable al- established if and when she could return to lowance of time for medical care and treat- work, she has not established she ais ment may, appropriate circumstances, individual.”). qualified above, noted As constitute a reasonable accommodation. Plaintiff submitted letters from her doc ease, however, In this plaintiff has failed to tors when requested she extended leave. present any evidence of expected dura- letter, The first from Ray, Dr. stated that tion of impairment her as of the date of Plaintiff “remains unable to return to termination.”); Taylor, see also work. It is uncertain when she be F.3d at (stating proposition); a similar capable of returning to work.” Id. at 184 Rascón, 143 F.3d at 1334 (stating a similar added). (emphasis letter, The second Smith, proposition); 102 F.3d at 1077 Maestas, Dr. states “[mjedically, (stating a proposition). similar Without an [Plaintiffl is to be expected considered unable to duration of impairment, an an type maintain any job employer duties and should cannot determine whether an be employee temporarily will be considered able to disabled. perform the es- sential functions duration job of the in the above near illnesses are un known, however, therefore whether the leave she will be followed very future request is a “reasonable” accommodation. closely in this office and should excused See, e.g., Hudson, 87 F.3d at 1169. For from any and all work January until example, in Rascón an employee submitted 1996.” added). Id. at (emphasis evidence from his doctor that expected Thus the letters state that the duration duration of his treatment four was months of the illness is both “uncertain” and “un- and his prognosis recovery “good.” Indeed, known.” Plaintiff conceded below See 143 F.3d at 1334. In the circum- that the record contains “no firm date of stances, the court held that the employee’s return (sum- to work-” II App. at 324 request for leave to seek treatment for his mary (Plaintiffs judgment hearing) attor- illness constituted “reasonable” accommo- ney); (Plaintiffs see id. at also attor- dation. See id. (“[TJhere ney) is nothing in this record at Hudson, In 87 F.3d at on the this time that establishes she would be hand, other the employee submitted some back at 1996.”). work at a certain in date evidence that she was permanently not In these circumstances the letters from disabled. however, The employee, failed Plaintiffs do doctors not establish that provide to any evidence expected of the Plaintiffs request leave was a “reasonable” duration impairment. of the See In id. accommodation. such circumstances the court held that the Plaintiff, however, cites her own affida- employee failed to create a triable issue of vit here in which she fact states that she ex- regarding the “reasonableness” of her pected to requested by recover id.; January See II leave. See Taylor, see also (“I App. (“As at 203 believe I Hudson, at 1110 would have re- Plaintiff present failed to turned to work January evidence 1996 if expected of the the Department duration impairment.”); Smith, employees his not begun had to F.3d at me.”). (rejecting the harass plaintiffs ADA As the district court cor- claim, because rectly held, “[a]s the date of her Plaintiffs belief own is not replacement termination, Smith had sufficient a fact, create issue of triable or mental physical known here, is modations where, belief her especially qualified her of an otherwise indi- limitations the evidence with inconsistent (dis- ... such cov- disability at 341-42 unless App. II See vidual with own doctors. (“The only evi- ruling) that the ac- judge’s oral can demonstrate entity trict ered I with that can find in the record undue impose an dence would commodation affidavit, Ex- issue, her is to this respect the business operation the hardship on that she be- she states in which Rascón, hibit In entity.”). such covered to work returned she could have lieves claimed that defendants the F.3d employees 1996, Department if January of requested his plaintiff with providing the is no other her. There not harassed had hardship. a result such leave would the evidence neces- is not That evidence. leave plaintiffs that court held capable she was that sary to establish undue hard- not constitute request could her functions of essential performing than it was less onerous ship because if or established not She position. has employer’s poli- leave by the offered leave work.”); see also she could return when at 1334-35. cies. See id. Newborns, Inc., and the v. Nannie Martin of Ras- reading Contrary to Plaintiffs Cir.1993) (“Martin 1410, 1418 that a cón, not establish case does that her own anything but provide unable to “reasonable” accom- is a requested leave that reasons assertion unsupported if such leave is authorized modation for pretext are a termination for her given Instead, Rascón policies. leave employer’s Conclusory state- discrimination. sexual requested is otherwise a motion if leave to defeat holds that are insufficient ments an ex- McKnigkt provides it summary judgment.”); “reasonable” —because 1125, 1130 Corp., 149 F.3d Kimberly Clark impairment pected duration —then plaintiffs (holding that the hardship undue constitute cannot the leave a to establish was insufficient opinion own by the is authorized leave requested if the fact). issue triable Here Plaintiff policies. employer’s leave request request that her that her never established argues next Plaintiff Therefore, complied pursu- it “reasonable” because “reasonable.” leave was was argues polices. She leave Defendants’ not address the court need ant Rascón a rule in such announced the court that un- constitute request would her whether Brief In Chief Appellant’s Rascón. circumstances, the In the hardship. due As noted persuaded. We are not 17-18. is sim- policies leave nature of Defendants’ held above, this court in Rascón ply relevant. reasonable if request is not leave sum, to establish has failed In evidence of present failed “plaintiff with a “qualified individual was that she impairment.” her expected duration to show disability” because she faded plaintiff Rascón, a “reasonable” was requested leave her doc- plaintiffs evidence: provided Therefore, cannot she accommodation. month that a four told the defendants tor ADA re- claim under on her prevail effectively likely to in-patient program caused Defendants of whether gardless thus id. The court plaintiff. See treat disability subjected her condition or had established plaintiff held circumstances In these discrimination. ac- a “reasonable” request leave Defen- correctly granted court the district id. See commodation. summary judgment for motion dants’ however, an ADA, require does not ADA claim. Plaintiffs all reasonable accom- employer provide Instead, need not employer an modations. IY requires an accommodation provide retalia a further asserts 42 U.S.C. See hardship.” “undue Defendants argues that She tion claim. (“[T]he 12112(b)(5)(A) term discriminate § employment ac- her to adverse subjected making reasonable accom- ... not includes 1132

tions because she had charges filed of dis- above, however, EEOC. As indicated crimination with the Title VII ADEA EEOC.14 validly does not abrogate the makes it “an employment practice unlawful states’ Eleventh Amendment immunity. for an employer Kimel, against discriminate See 120 S.Ct. at 650. Accordingly, any employees ... of his because [the Plaintiff pursue cannot a claim of retalia- opposed employee] any practice Defendants, has made against tion agency, a state practice an unlawful employment by this under the ADEA. ” 2000e-3(a). subchapter.... § 42 U.S.C. Finally, the like Title VII and the VII, therefore, Title prohibits an employer ADEA, provides also person “[n]o retaliating against an employee who shall against discriminate any individual charge has filed a of discrimination with because such opposed individual any has EEOC, McGarry, see 175 F.3d at practice act or made by unlawful chap- only but charge alleges when the discrimi- ter.” 42 Therefore, § U.S.C. 12203. “race, color, nation on the basis religion, prohibits ADA an employer from retaliat- sex, or origin,” § national 42 2000e- U.S.C. ing against an employee has a who filed 2(a). charges alleged Plaintiffs age and charge of disability discrimination with the disability discrimination. Accordingly, above, (unlike EEOC. As stated the ADA Plaintiff cannot state a claim of retaliation ADEA) validly abrogates the states’ under Title VII. Eleventh immunity. Accord- ingly, we consider whether Plaintiff ade- VII, Like Title the ADEA makes it quately a states claim for retaliation under

unlawful an employer to for discriminate the ADA. against any employees of his appli or employment, cants for for. an employ Retaliation generally pro claims ment agency to against any discriminate ceed under the McDonnell Douglas Corp. individual, or organization for a labor Green, v. 411 U.S. 36 against any discriminate member there (1973) burden-shifting analy applicant of or for membership, because sis. Widnall, Gonzagowski individual, such applicant member or Cir.1997).15 Under membership opposed has any practice analysis, employee must first establish made by unlawful this section.... a prima case of retaliation demon facie 623(d). Therefore, § 29 U.S.C. “(1) the ADEA strating that: she engaged protect prohibits employer an from retaliating opposition ed to [ADA] discrimination or against an employee who has filed a participated (2) proceeding; a[n][ADA] charge of discrimination with the age she suffered an adverse employment action brief, In her opening Plaintiff asserts plaintiff "may 14. A also establish discrimina Defendants retaliated taking tion directly, in which case the McDonnell FMLA Appellant's leave. See Brief In Chief Douglas framework is inapplicable.” Med prohibit FMLA Biotech, Inc., does such retaliation. lock v. Ortho 2615(a)(1) — (making (10th Cir.), denied, U.S.C. it unlaw -, cert with, employer ful for an "to (1999): interfere re 145 L.Ed.2d 42 prevail "To strain, deny method, the attempt exercise orof via plaintiff this direct must intro exercise, any right provided under" the duce direct or circumstantial evidence that Act). However, alleged Plaintiff neither a vio alleged retaliatory actually motive relates lation of complaint, the FMLA in her nor did question partic discrimination in the she raise decision, otherwise claim below. ular employment the mere circumstances, other, we will not consider unrelated, Plain existence potentially tiff's argument. FMLA retaliation See Rade forms of discrimination workplace.” in the macher v. Id.; Colorado Ass’n Inc., Soil Conservation see also Shorter v. Holdings, ICG Plan, Dists. Med. (10th Cir.1999) F.3d ("[State Benefit (10th Cir.1993) ("The rule, however, general personal ments of prejudice!] bias or do not is that the failure to raise the issue with the constitute direct evidence of discrimina trial court precludes except tion.”). review (and the argued Plaintiff has not cannot error.”) (citation, alteration, most manifest successfully argue) that she satisfies that re quotation omitted). and internal marks quirement.

H33 affidavit) (“In (Plaintiffs early 199 App. to subsequent with contemporaneous or (3) 1995, to the Human I went Re- participation; August opposition the between Department. connection I a causal re- there is sources Office employ- the adverse activity and protected Armijo appropriate Carla quested from Home Penry Federal v. ment action.” Annual complete request Do- forms to F.3d Topeka, Bank Loan Department’s pursuant to the nated Leave Cir.1998) v. (quoting Cole Policy.... Armi- Leave Ms. Catastrophic Schs., 43 F.3d Mun. Ruidoso attorney that I had an jo told me since Hilti, (10th Cir.1994)); Morgan v. also see my grievance against representing me on (10th Cir.1997) Inc., 108 F.3d any not me Department, give she could requirement). the same (stating so.”). to do and refused forms prima a employee If establishes fa- her file Plaintiff did first case, shifts to burden then cie September the EEOC until charge with non-re- legitimate, employer to articulate 29,1995, challenged after the over a month action. for the adverse taliatory reasons early August. That employment action in Biotech, Inc., 164 v. Medlock Ortho See — denied, so, prove that (10th Cir.), being Plaintiff cannot cert -, “contempora L.Ed.2d action occurred employment burden, its employer meets filing If the to” a subsequent her neous with or employee to Therefore, shifts back the burden Plain the EEOC. charge with reasons the proffered demonstrate fails. claim of tiffs first retaliation employee can id. The pretextual. See are “showing either that a prove pretext B likely motivat- discriminatory reason more however, argues, further Plaintiff employer’s employer or that ed the her to consider re- Defendants’ refusal unworthy of cre- explanation is proffered Inc., in the donated annual participate Holdings, quest Shorter ICG dence.” (cita- (10th Cir.1999) unlawful retalia- constitutes program leave alteration, quotation tion, plaintiff and internal es- persuaded are tion. We omitted); Rea v. Martin see also marks of retaliation: prima a case tablished facie 1450, 1455 Corp., 29 F.3d Marietta (1) charge of discrimination filed a Plaintiff requirement). (stating same EEOC, protect- constituted with the which (2) discrimination; to ADA opposition took ed that Defendant alleges Plaintiff plaintiffs request in re- actions denied separate employment Defendants several with the filing charges her donated in the leave participate taliation annual in turn. claim We examine each EEOC. a date sub- on November program first EEOC filing of her to her sequent A (3) 1995; charge September re- that Defendants alleges first protected Plaintiff proximity between temporal the donated provide with fused and the charge adverse of the EEOC filing a had filed because she application leave Plaintiffs refusing action employment Appellant’s See with the EEOC. charge demonstrate caus- is sufficient to request To establish a In Chief 24-26. Brief McGarry, al connection. however, retaliation, prima case facie require- prove, among other must to Defendants shifted The burden then ments, an adverse em- “she suffered non-retaliatory ratio- legitimate, to offer with or ployment contemporaneous action Defendants met those decisions. nale for charge of her filing subsequent to” it refused to by stating that that burden at 1263- Penry, 155 F.3d EEOC. she request because consider Plaintiffs re- Defendants Plaintiff concedes that at 189. The App. See II was AWOL. the annual do- her with provide fused Plaintiff to back to thus shifted II burden early August. See leave forms nated prove proffered rationale was took Defendants the action illegiti for an pretextual. circumstances, mate reason. In the district court by erred granting Defen pretext, To demonstrate dants’ motion summary for judgment. See points Plaintiff to the combination of cir v. Iopa, 1231, Christie cumstances of the manner and timing of Cir.1999) (“Although may Kimura’s actions appli Defendants’ refusal to consider her explanation, have an innocent on summary participate cation to in the annual leave judgment only question is whether a program, donation and Defendants’ desig juror rational could infer a noninnocent nating retroactively her AWOL to October 18, explanation. A juror rational Appellant’s 1995. could infer See Brief In Chief at 24-25. that such Kimura’s agree We acts showed circumstances affirmative are agreement sufficient for the of fact to Iopa’s trier find actions. In cir pretext. cumstances, the district court by erred granting summary judgment to Defen requested Plaintiff that Defendants al- ”), dants on Anderson’s claim .... cert. participate low her to in the annual donat- — denied, U.S. -, 324, ed leave program on October (1999); see App. time, See II also Marx v. at 182-83. At that Plain- Markets, Inc., AWOL; Schnuck tiff was placed she had been (10th Cir.1996) on leave pay by supervisor, without (“Granting plaintiff pending completion a request for ex- benefit of every inference, favorable (which tended leave without pay Plaintiff pattern of by actions taken defendants 1995). also submitted on October See precludes summary judgment concerning id. at 170. Defendants received Plaintiffs defendants’ motivation in demoting plain requests for extended pay leave without tiff and terminating employment.”); his participation for in the annual donated Corneveaux v. Cuna Ins. Group, Mut. program leave on October 1995. See Cir.1996) (“This case 182, 183, id. at 187. On November presented factual disputes material which Defendants request denied Plaintiffs for should have been resolved the trier of pay extended leave without because Plain- fact. If jury had found rea CUNA’s tiff refused to right waive her to return to sons to pretexts age discrimination an equivalent position. id. at 187-88. then it could have inferred dis intentional In letter, same November crimination and found favor of Ms. Cor- placed Defendants also Plaintiff on AWOL neveaux.”). status, retroactively to October sum, we hold that the summary date judg- on which defendant received ment rejecting requests.

Plaintiffs the retaliation Defendants then re- claim was error for fused to consider reasons request Plaintiffs stated above in par- this Part ticipate in opinion. the annual IV-B of this pro- donated leave respect With to this gram because she was AWOL. See claim id. at of retaliation based on the manner and timing of Defendants’ refusal to con- sider application Plaintiffs partic- A rational trier of pre- fact could infer ipation in the annual donated pro- leave text the timing and manner Defen- gram and actions, Defendants’ related we dants’ action. Specifically, Plaintiff was reverse the grant of summary judgment. not AWOL when she submitted her re- quest to participate in annual donated program

leave and Defendants refused to V consider her request it because retroac- tively deemed her has challenged Although AWOL. De- the district fendants have court’s retroactively decision to declared award costs to Defen- Plaintiff AWOL legitimate reason, for a dants. Because we have reversed dis- rational trier of fact could also infer that trict court’s in part, decision we remand question the cost for reconsideration of our decision.

light (6) data, polls, national and other census people studies have documented VI disabilities, group, occupy as a an with part AFFIRM in and Accordingly we society, inferior status in our and are court’s part the district REVERSE severely disadvantaged socially, voca- Defen- summary judgment grant of tionally, economically, educationally; and pro- further REMAND for dants. We (7) with disabilities are a dis- individuals opinion. with this ceedings consistent minority have crete and insular who limita- been faced with restrictions and APPENDIX tions, subjected history purpose- to a full, 12101states: U.S.C. treatment, unequal relegated ful and to that— Congress finds political powerlessness position (1) 43,000,000Americans have one some society, our based on characteristics disabilities, or mental physical or more beyond are the control of such individu- increasing is as the and this number resulting stereotypic als and as- older; growing is population as a whole in- sumptions truly indicative of the (2) to historically, society has tended ability dividual of such individuals to individuals with segregate to, isolate and in, society; and contribute participate disabilities, and, despite improve- some (8) proper goals regarding the Nation’s ments, such forms of discrimination with disabilities are to assure individuals con- individuals with disabilities against opportunity, partic- full equality of pervasive social tinue to be a serious and independent living, and econom- ipation, problem; individuals; self-sufficiency ic for such (3) against discrimination individuals and persists in critical with disabilities such (9) continuing existence of unfair public ac- employment, housing, areas and unnecessary and discrimination commodations, education, transporta- people with disabilities prejudice denies communication, recreation, tion, institu- opportunity compete equal on an tionalization, services, voting, and health pursue opportunities those basis and services; public access to society justifiably for which our free (4) experi- unlike individuals who have famous, bil- and costs the United States on the basis of enced discrimination unnecessary expenses of dollars in lions race, color, sex, religion, origin, national dependency nonpro- and resulting from experienced age, individuals who have duetivity. disability on the basis of discrimination (b) Purpose to re- legal have often had no recourse purpose chapter— of this It is the discrimination; dress (1) comprehen- and provide a clear (5) contin- individuals with disabilities for the elimination sive national mandate ually encounter various forms dis- with against individuals of discrimination crimination, including outright inten- disabilities; exclusion, discriminatory tional consistent, (2) clear, strong, provide architectural, transporta- effects addressing dis- enforceable standards tion, barriers, ov- and communication with dis- crimination individuals failure erprotective policies, rules and abilities; existing fa- to make modifications (3) that the Federal Govern- to ensure exclusionary practices, cilities enforcing role in plays a central ment criteria, qualification standards chapter in this established the standards relegation to lesser segregation, and disabilities; benefits, of individuals activities, on behalf services, programs, jobs, opportunities; or other

Schacht, 524 U.S. at 118 S.Ct. 2047. sure, past Supreme To be Court cases (4) sweep congressional to invoke the implied have that Eleventh Amendment authority, including power to enforce immunity is in the subject nature of a amendment and regu- fourteenth jurisdiction id., matter defense. See commerce, in late order address the 393, J„ U.S. at (Kennedy, 118 S.Ct. 2047 major day- areas of discrimination faced concurring). While the Eleventh Amend to-day by people with disabilities. ment be a limitation on a federal KELLY, Jr., Judge, PAUL Circuit judicial court’s power, “it is not coexten concurring part dissenting part. and judicial sive with the power limitations on Calderon, in Article III.” 523 U.S. at 745 n. I. 2, 118 S.Ct. Were the Eleventh argument, At oral Defendants raised the truly jurisdictional, Amendment a court Amendment, Eleventh which had not been would not be free to it. ignore See Parella presented to the district or in their court v. Retirement Bd. R.I. Employees’ Re appellate briefs. Eleventh Amend (1st 46, Sys., tirement 173 F.3d 55-56 Cir. ment may any stage be raised at 1999). Supreme Even the Court has ad proceedings, sponte. and sua See Calder questions dressed merits before Eleventh Ashmus, 740, 2, v. on 523 U.S. 745 n. Amendment immunity. See Vermont 1694, (1998); S.Ct. 140 L.Ed.2d 970 Hig Agency Natural Resources v. United gins Mississippi, 951, v. 217 F.3d 953-54 — Stevens, U.S. -, States ex rel. (7th Cir.2000); Long United States ex rel. 1858, 1865-66, 146 L.Ed.2d 836 Institute, v. SCS Business & Technical Inc., 890, (D.C.Cir.1999). 173 F.3d Our cases have considered Eleventh Here, represented Defendants were immunity Amendment sua sponte, and in the Legal able Bureau of the New Mexi- See, similar e.g., circumstances. Sutton co Division, State Risk Management Blind, Utah State Sch. Deaf did not raise Eleventh Amendment immu- (10th Cir.1999); 1231-32 V- nity as an affirmative defense in an- their 1 Oil Co. v. Utah State Dep’t Pub. They swer. moved only to dismiss Safety, 131 F.3d Cir. individual Defendants named in their in- 1997); Mascheroni v. Board Regents of dividual capacities. In replying to Plain- Cal., the Univ. argument motion, tiffs against the Defen- Cir.1994). upon dants relied abrogation of Eleventh Supreme view of the holding Court’s Amendment immunity and stated: in Wisconsin Dep’t Corrections v. The waiver of the immunity state’s has Schacht, 524 U.S. 118 S.Ct. validated, been at least for Title VII and (1998), however, it ap- seems whether the waiver is valid for the ADA propriate to consider whether the Defen- has conclusively not been determined in dants have their waived Eleventh Amend- light of Seminole Tribe Fla. v. Flori-

ment immunity argument. da, [517 116 S.Ct. Court, According to the (1996), L.Ed.2d 252] but that issue is not The Eleventh Amendment ... does not pending asserted motion. automatically destroy original jurisdic- Rather, ApltApp.

tion. the Eleventh 26. The district court agreed Amendment grants legal power the State a that Eleventh assert Amendment immunity had a sovereign immunity been abrogated pursuant defense should it to section 5 of choose to do so. The can the Fourteenth State waive Amendment. Id. at 29. the defense. Nor need a After failing court raise the to make an argument that the defect on its own. abrogation Unless the State ADA’s of Eleventh Amendment matter, raises the ignore invalid, court can immunity it. partici- Defendants

H37 288, 347, Auth., 297 U.S. then discovery and moved pated (1936) (Brandeis, J., concurring). L.Ed. 688 on the merits. summary judgment waiver of Eleventh a state’s Although II. be clear immunity must opinion the court’s I concur in where the possible waiver unequivocal, IV), exception III with the (parts merits & jurisdic federal voluntarily invokes IV(B), summary which reverses part to submit its intent clearly declares tion or ADA retaliation claim. College judgment Sav. on the jurisdiction. to federal Postsecondary Plaintiff was on leave it is true that Prepaid While Bank v. Florida 675-77, Bd., made at the time she pay 527 U.S. without status Expense Educ. 2219, 2226, participate 144 L.Ed.2d in the leave request 119 S.Ct. her (1999). where a waiver pay have found program, that leave without We donation court, federal as a case to only state received removes until Defendants status was on the immunity and then defends serts for extended leave completed request a McLaughlin v. Board (Defendants’ merits. See Aplt-App. 170 pay. without Colo., 215 Colleges State 9/29/95) (“On Trustees Fri- to Plaintiff dated letter Cir.2000) (10th 1168, (adopt 1170-71 F.3d Romero, 15, B. day, September Christine approach his con Kennedy’s ing Justice Division, Human Resources Director of the Schacht); Sut see also curring opinion (as pay without verbally approved leave (state ton, removed pay’) leave opposed to ‘extended without merits). litigated on federal court Department as the until such time receives course, a in fed merely defending suit Of completed Request for Extended your waiver. not amount to a eral court does can Pay form so we make Leave Without is aware of the Eleventh But where a state applicable on decision based formal init but withholds argument rules.”). was request received Plaintiffs merits, its con defending on favor 18, On Aplt.App. 187. on October Nein amount to a waiver. See duct 6, 1995, the Defendant denied November Texas, 217 F.3d 275 v. ast pay leave without request for extended (“[T]he simultaneously pro cannot not waive the “like Plaintiff would because stage and answer past the motion ceed geographic the same status and pay, immunity an and hold back the merits at 188. Plaintiff Id. location” condition. defense”); Servs. Hill v. Blind Indus. & of October status as placed in AWOL was 754, 762-63 Cir. Maryland, 179 F.3d 1995, 18, the date that leave was which 1999). issue, may look deciding In we ran out. id. She pay status See without claiming Elev of the state to the conduct additional time to waive given was also v. immunity. See Innes enth Amendment id. condition. See (In Innes), 184 re Kansas State Univ. placement states Though the Court (10th Cir.1999), cert. de F.3d retroactive, Op. at Ct. in AWOL status , — -, nied that Plain- it be remembered must never Defendants L.Ed.2d 345 awas after October tiffs status argument their current presented if she would waive accompli fait court, the bet preferring hedge district summary judg- condition. None argu- appeals during oral at the court that Defendants suggests ment material easily case is resolved ment. Because the grant any obligation were under narrower than Eleventh grounds she pay when without extended leave Amendment, I not reach the Elev- would condition, then would not waive Parella, 173 issue. See enth Amendment pro- leave participate her to allow 56-57; generally see Three Affili- gram. P.C., Eng’g, 467 U.S. v. ated Tribes Wold summary judgment, Defen- seeking 138, 157, legitimate, non-discrim- articulated (1984); Valley dants v. Tennessee Ashwander belief, thus, inatory placing worthy reason for the Plaintiff in respectfully I dis- IV(B). 1995-spe- part as of sent from AWOL status October cifically, per- Plaintiff refused to waive the 41; Aplt-App. Aplee.

tinent condition. See

Supp.App. 32-33. Defendant then refused request

to consider the leave donation

Plaintiff good was AWOL and not Aplt.App. standing. See 271. Plain- COMPANY, ATLANTIC RICHFIELD repeatedly tiff was warned about this and Plaintiff-Counter-Defendant- the evidence indicates that a failure to Appellee, report expired for work when FMLA leave v. might voluntary be considered a resigna- Aplee. SuppApp. tion. See The FARM BANK CREDIT OF WICH ITA, formerly known as the Federal view, In my completely failed to Wichita, Land Bank of Defendant- pretext. demonstrate Anderson Counter-Claimant-Appellant, Co., Brewing Coors Cir.1999) (discussing pretext). For example, response Plaintiffs to the sum- Stanley Mollerstuen; McVey; A. Hal A. mary judgment motion states: McVey; Koscove, Helen D. Carol employees Defendants-Counter-Claimants, Other of the Defendant have granted been donated annual leave Garcia; Garcia; Alfred Naddie Edward despite the sworn affidavit of Christine Garcia; Mary Salazar-Tier; Ruth Romero, which contradicts deposi- Peggy Garcia; Jacquie Garcia; Cath testimony.1 tion Her affidavit indicates Voelkerding; Beck; erine Manuelita no other coworkers of Plaintiff had been Martinez; Anna M. Geraldine Velas granted said leave. quez, Intervenors,

26. Defendant Christine Romero has animosity indicated an towards Plaintiff years. over a number of Royalty National Association of Owners, Inc., Amicus (citations omitted). Aplt-App. Curiae. (Don Lawson) points then ato coworker requested who donated annual leave be Company, Atlantic Richfield Plaintiff- cause of a medical required condition that Counter-Defendant-Appellant, a six-month absence. Id. at Plaintiff, however, has no evidence that the coworker similarly situated to her-that Wichita, The Farm Credit Bank of for the coworker point was at a where he merly known as the Federal Land Koscove, needed indefinite extended leave without Wichita; Bank Carol pay and pertinent refused to waive the ndants-Counter-ClaimantsA Defe condition simultaneously with requesting ppellees, leave donations. Krouse v. American Cf. Co., (3rd Sterilizer Cir.

1997) (analyzing “similarly Stanley situated” in Mollerstuen; A. McVey; Hal A. context). ADA retaliation Nothing McVey, indi Helen D. Defendants- cates that the Counter-Claimants, Defendant’s reasons are un- Stores, Inc., 1. The hardly apparent. contradiction Cir. opposing summary judgment, Plaintiff has 1998) explain. burden to See Adler v. Wal-Mart

Case Details

Case Name: Cisneros v. Wilson

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Sep 11, 2000

Citation: 226 F.3d 1113

Docket Number: 98-2215

Court Abbreviation: 10th Cir.