Elberta Bernice Lieberman v. State of Delaware; Family Court of Delaware

NOT PRECEDENTIAL
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 01-3540
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ELBERTA BERNICE LIEBERMAN
v.
STATE OF DELAWARE;
FAMILY COURT OF DELAWARE,
Appellants
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ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
(D.C. Civil No. 96-cv-00523)
District Judge: The Honorable Gregory M. Sleet
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Submitted Under Third Circuit LAR 34.1(a)
July 7, 2003
BEFORE: NYGAARD, SMITH, and GREENBERG, Circuit Judges.
(Filed: July 14, 2003)

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1. In 1997, at the request of Lieberman, the District Court stayed this matter for
additional EEO C investigation. A year later, the EEOC dismissed the complaint and
sent another right-to-sue letter.
2
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OPINION OF THE COURT
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NYGAARD, Circuit Judge.
Appellee, Elberta Bernice Lieberman, who had worked in a variety of
positions at the Family Court of the State of Delaware for twenty years, filed a complaint
with the EEOC claiming disability discrimination by her supervisor. The EEOC
dismissed Lieberman’s complaint, and sent her a right-to sue letter. In 1996, Lieberman
then sued the State of Delaware and the Family Court of the State of Delaware,1 and her
complaint contains claims under (1) Title II of the Americans with Disabilities Act, 42
U.S.C. § 12101 et seq., (2) Section 504 of the Rehabilitation Act of 1973, 20 U.S.C. §
701 et seq., (3) the anti-retaliation provisions of the ADA, and (4) the anti-retaliation
provisions of the Rehabilitation Act. The District Court granted the State’s motion to
dismiss Lieberman’s Title II claims on the basis of Eleventh Amendment immunity but
denied the State’s motion to dismiss Lieberman’s Rehabilitation Act claims. The State of
Delaware appealed. Since we find that the District Court had jurisdiction over the
Rehabilitation Act claims and that Koslow v. Commonwealth of Pennsylvania, 302 F.3d
161 (3d Cir. 2002), controls the Rehabilitation Act issue, we will affirm.

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3
First, appellants argue that, because Article II, § 2, clause 2 of the U.S.
Constitution vests the Supreme Court with original jurisdiction where a state is a party,
the District Court lacks jurisdiction to hear the suit. Appellants do not mention, however,
the well-established principle that Congress can give lower federal courts concurrent
jurisdiction over matters where the Supreme Court has original jurisdiction. Ames v.
Kansas, 111 U.S. 449 (1884). In fact, ever since the Judiciary Act of 1789, Congress has
assumed that the constitutional grant of original jurisdiction to the Supreme Court could
be made concurrent with the jurisdiction of the lower federal courts. We maintain the
unremarkable position that 28 U.S.C. § 1331 properly provides the District Court with
jurisdiction over this matter.
Turning to the Eleventh Amendment issue, we note that, while this case was
pending with us, but before briefing, we decided Koslow v. Pennsylvania, 302 F.3d 161
(3d Cir. 2002). In Koslow, a disability discrimination case under § 504 of the
Rehabilitation Act, we had to determine whether the Commonwealth of Pennsylvania had
waived its sovereign immunity by accepting certain federal funds for the Department of
Corrections. Koslow, 302 F.3d at 165. We determined that Congress could require a
state to waive its immunity to suit under the Rehabilitation Act as a condition for
receiving federal funds and had done so. Id. at 172. Since the Commonwealth of
Pennsylvania had accepted federal financial assistance under the State Criminal Alien
Assistance Program, and provided these federal funds to the Department of Corrections,

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we concluded that the Commonwealth had waived immunity for § 504 claims against its
Department of Corrections under the Rehabilitation Act. Id. at 172.
Our decision in Koslow is on all fours with this case. At all relevant times,
Lieberman worked in an activity or program of the Family Court that is alleged to be a
recipient and beneficiary of federal financial assistance. We therefore affirm the District
Court’s thoughtful determination that the appellants have waived their Eleventh
Amendment immunity, and that the appellants’ motion to dismiss Lieberman’s claims
under Section 504 of the Rehabilitation Act should have been denied.
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TO THE CLERK:
Please file the foregoing opinion.
/s/ Richard L. Nygaard
Circuit Judge

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