Blauer v. Department of Workforce Services

2014 UT App 100
_________________________________________________________
THE U TAH COURT OF A PPEALS
LORIN BLAUER ,
Plaintiff and Appellant,
v.
D EPARTMENT OF WORKFORCE SERVICES,
Defendant and Appellee.
Opinion
No. 20130047‐CA
Filed May 1, 2014
Third District Court, Salt Lake Department
The Honorable John Paul Kennedy
No. 040900221
Vincent C. Rampton, Attorney for Appellant
Sean D. Reyes, J. Clifford Petersen, and Philip S.
Lott, Attorneys for Appellee
J UDGE J AMES Z. D AVIS authored this Opinion, in which J UDGE
G REGORY K. ORME and S ENIOR J UDGE R USSELL W. BENCH
concurred. 1
DAVIS, Judge:
¶1 	Lorin Blauer appeals the trial court’s dismissal of his claims
under the federal Americans with Disabilities Act (ADA), see 42
U.S.C. § 12112(b)(5)(A) (requiring employers to make “reasonable
accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability who is an applicant
or employee”), and the Utah Antidiscrimination Act (UADA), see
1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11‐201(6).

Blauer v. Department of Workforce Services
Utah Code Ann. § 34A‐5‐106(1)(a)(i)(H) (LexisNexis Supp. 2013)
(prohibiting employment practices that discriminate on the basis
of disability). We affirm.
BACKGROUND
¶2 	This case is the fifth in a series of cases addressing Blauer’s
civil and administrative claims relating to his employment with
and termination from the Department of Workforce Services
(DWS). Additional facts are outlined in those cases. See Blauer v.
Career Serv. Review Bd. (Blauer IV), 2012 UT App 120, 276 P.3d 1246;
Blauer v. Department of Workforce Servs. (Blauer III), 2008 UT App
84U. Blauer v. Department of Workforce Servs. (Blauer II), 2007 UT
App 280, 167 P.3d 1102; Blauer v. Department of Workforce Servs.
(Blauer I), 2005 UT App 488, 128 P.3d 1204.
¶3 	Blauer worked as legal counsel for DWS. Beginning in 2003,
Blauer sought ADA accommodations for sleep apnea, sciatica, and
coronary artery disease. His doctor recommended that DWS
accommodate Blauer’s sciatica and sleep apnea by selecting his
assignments “in such a way as to avoid, as much as possible, his
functioning in . . . sedentary settings” and that it accommodate
Blauer’s coronary artery disease by making his work environment
less stressful, i.e., by providing him with “[k]nown and understood
expectations” 	limited 	to 	“a 	full 	40 	hour 	work 	load 	for 	an
experienced attorney in Mr. Blauer’s specialty.” Blauer provided
this recommendation to DWS’s ADA coordinator, who determined
that his “limitations [did] not rise to a level requiring an ADA
accommodation” but referred the recommendations to Blauer’s
supervisor. In response to Blauer’s concerns, as well as additional
concerns about Blauer’s work performance, his supervisor changed
his 	work 	assignment 	and 	required 	that 	he 	“conduct
[unemployment insurance] hearings full‐time with no change in job
title or pay rate.” Blauer contested the reassignment, arguing that
conducting hearings full time would require him to sit for long
stretches of time and prevent him from moving around as his
20130047‐CA 	2014 UT App 100	2

Blauer v. Department of Workforce Services
doctor had recommended. However, DWS’s executive director
upheld the reassignment, explaining that “[s]ince the majority of
these hearings are conducted over the telephone, there should be
no problem with [Blauer] standing up and moving around [his]
office while the hearings are in progress.” Thereafter, Blauer
applied for and was granted medical leave pursuant to the Family
and Medical Leave Act (FMLA). Blauer refused to return to work
until DWS agreed to make the accommodations he sought, and
after Blauer had exhausted his FMLA leave, DWS terminated his
employment.
¶4 	While on FMLA leave, Blauer filed a grievance with the
federal Equal Employment Opportunity Commission (EEOC) and
received a Notice of Right to Sue from the Civil Rights Division of
the United States Department of Justice. See generally Dao v. Auchan
Hypermarket, 96 F.3d 787, 788–89 (5th Cir. 1996) (per curiam)
(holding that an employee seeking to pursue an ADA claim must
exhaust 	her 	administrative 	remedies 	by 	filing 	a 	charge 	of
discrimination with the EEOC prior to filing a civil claim, and
citing identical holdings from other federal courts that have
considered the issue). Blauer then filed a complaint in state court,
alleging violations of the ADA and the UADA, seeking both
monetary damages and reinstatement of his employment with
DWS. DWS moved to dismiss the claims, and the trial court
granted its motion, determining that DWS was immune from suit
under the ADA and that the trial court lacked jurisdiction over the
UADA claims because the UADA provides only an administrative
remedy and not a private right of action. Blauer appeals.
ISSUES AND STANDARDS OF REVIEW
¶5 	Blauer asserts that the State has waived sovereign immunity
with respect to ADA claims and that the trial court therefore erred
in dismissing his claims on grounds of sovereign immunity. “[A]
district 	court’s 	dismissal 	of 	a 	case 	based 	on 	governmental
immunity is a determination of law that we afford no deference.
20130047‐CA 	2014 UT App 100	3

Blauer v. Department of Workforce Services
We review such conclusions for correctness.” Wheeler v. McPherson,
2002 UT 16, ¶ 9, 40 P.3d 632 (citations omitted).
¶6 	Blauer further argues that the UADA is unconstitutional
inasmuch as it permits the Division of Antidiscrimination and
Labor to arbitrarily deprive state employees of a remedy, despite
purporting 	to 	grant 	such 	employees 	protection 	from
discrimination. 2 “We 	review 	constitutional 	questions 	for
correctness.” State v. Van Dyke, 2009 UT App 369, ¶ 18, 223 P.3d
465.
ANALYSIS
I. Sovereign Immunity and Waiver
¶7 	Blauer first contests the trial court’s determination that DWS
is immune from suit under the ADA. Blauer points us to section
12202 of the ADA, which provides,
A State shall not be immune under the eleventh
amendment to the Constitution of the United States
from an action in Federal or State court of competent
jurisdiction for a violation of this chapter. In any
action 	against 	a 	State 	for 	a 	violation 	of 	the
requirements of this chapter, remedies (including
remedies both at law and in equity) are available for
such a violation to the same extent as such remedies
2. Blauer frames this argument as a challenge to the trial court’s
dismissal of his UADA claims. We ultimately do not reach the
merits of Blauer’s constitutional claim, see infra ¶¶ 11–12, but even
if we had ultimately ruled in Blauer’s favor, he would not be
entitled to pursue his UADA claims in state court because, as the
trial court pointed out, the UADA provides only an administrative
remedy for violations of its provisions, not a private right of action.
20130047‐CA 	2014 UT App 100	4

Blauer v. Department of Workforce Services
are available for such a violation in an action against
any public or private entity other than a State.
42 U.S.C. § 12202. However, the United States Supreme Court has
struck down the above‐quoted section as an unconstitutional
abrogation of the states’ Eleventh Amendment immunity. Board of
Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 364, 373–74
(2001). Blauer emphasizes the fact that the Eleventh Amendment
protects states from suit only in federal court, not state court.
However, state immunity from suits based on federal law exists
irrespective of the Eleventh Amendment, and the United States
Supreme Court has rejected the idea that state courts could be
required “to entertain federal suits which are not within the judicial
power of the United States and could not be heard in federal
courts.” Alden v. Maine, 527 U.S. 706, 712–13, 754 (1999). Thus, the
fact that the Eleventh Amendment does not explicitly protect states
from federal claims brought in state court does not mean that
Blauer can avoid DWS’s claim of sovereign immunity by bringing
his ADA claim in state court instead of federal court.
¶8 	Blauer next asserts that even if the State of Utah and its
subdivisions are immune from ADA suits, Utah has waived that
immunity. See generally id. at 737 (observing that “a State may
waive its sovereign immunity and consent to suit”). His argument
relies on Utah’s acceptance of ADA‐related federal funding and its
passage of the UADA.
¶9 	First, Blauer argues that Utah’s receipt of federal funding for
ADA‐related programs constitutes a waiver of immunity with
respect to ADA claims. Although Congress has the power to
condition receipt of federal funds on a state’s waiver of sovereign
immunity pursuant to the spending clause, see College Sav. Bank v.
Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 686–87
(1999), “the mere receipt of federal funds cannot establish that a
State has consented to suit in federal court,” Atascadero State Hosp.
v. Scanlon, 473 U.S. 234, 246–47 (1985), superseded by statute on other
grounds, 42 U.S.C. § 2000d‐7(a)(1) (imposing an unambiguous
20130047‐CA 	2014 UT App 100	5

Blauer v. Department of Workforce Services
waiver of immunity on states that receive federal financial
assistance in connection with the Rehabilitation Act and various
other federal antidiscrimination statutes). Such a waiver occurs
only 	where 	there 	has 	been 	“‘an 	unequivocal 	expression 	of
congressional intent’” to make funding conditional on a waiver of
immunity. See id. at 253–54 (quoting Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 99 (1984), superseded by statute on other
grounds, 28 U.S.C. § 1367); see also Green v. Mansour, 474 U.S. 64, 68
(1985) (explaining that in order for a federal act to abrogate states’
sovereign immunity, Congress must “unequivocally express[] its
intent to abrogate the immunity”). Federal courts have consistently
held that Congress has not “‘manifest[ed] a clear intent to condition
participation in the programs funded under the [ADA] on a State’s
consent to waive its constitutional immunity.’” Panzardi‐Santiago v.
University of P.R., 200 F. Supp. 2d 1, 9 (D.P.R. 2002) (quoting
Atascadero, 473 U.S. at 247, and applying its analysis of the
Rehabilitation Act to the ADA); accord, e.g., Shotz v. City of
Plantation, 344 F.3d 1161, 1174 (11th Cir. 2003) (holding that the
liability provisions of the ADA are not conditioned on the receipt
of federal funding and contrasting the ADA with the Rehabilitation
Act, 	which, 	unlike 	the 	ADA, 	was 	enacted 	pursuant 	to 	the
Constitution’s spending clause); Fields v. Department of Pub. Safety,
911 F. Supp. 2d 373, 379 & n.6 (M.D. La. 2012); Dansby‐Giles v.
Jackson State Univ., 638 F. Supp. 2d 698, 700–01 (S.D. Miss. 2009);
Gary v. Georgia Dep’t of Human Res., 323 F. Supp. 2d 1368, 1372
(M.D. Ga. 2004). But cf. Pace v. Bogalusa City Sch. Bd., 403 F.3d 272,
287–88 (5th Cir. 2005) (en banc) (holding that immunity from
“ADA claims . . . directed at architectural barriers” under Title II of
the ADA may be waived by acceptance of federal funds because
“the rights and remedies [provided by the ADA] are exactly the
same as those provided under the Rehabilitation Act,” which
explicitly conditions receipt of federal funds on a waiver of
immunity); Covington v. McNeese State Univ., 996 So. 2d 667, 673
(La. Ct. App. 2008) (adopting the Pace court’s analysis of ADA
claims directed at architectural barriers). Thus, Blauer’s assertion
20130047‐CA 	2014 UT App 100	6

Blauer v. Department of Workforce Services
that Utah has waived immunity by accepting federal ADA funds
is without merit. 3
¶10 	Blauer next contends that the Utah Legislature’s passage of
its own antidiscrimination act, the UADA, which grants state
employees 	the 	right 	to 	pursue 	administrative 	remedies 	for
discriminatory employment practices, constituted a waiver of
sovereign immunity under the ADA. In support of this argument,
Blauer relies on Williamson v. Department of Human Resources, 572
S.E.2d 678 (Ga. Ct. App. 2002), in which the Georgia Court of
Appeals held that the State of Georgia had waived its sovereign
immunity from ADA claims by state employees when it enacted
legislation granting such employees an administrative remedy
under state law for discrimination in employment based on
disability. See id. at 681–82. However, other courts that have
considered similar questions have reached the opposite conclusion.
See Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 332 (5th Cir.
2002) (holding that Texas’s waiver of sovereign immunity with
respect to Texas Labor Code claims in state court did not constitute
a clear and unequivocal waiver of immunity with respect to ADA
claims in federal court, even though one of the purposes identified
by the Texas Labor Code was to “‘provide for the execution of the
policies embodied in Title I of the [ADA]’” (quoting Tex. Lab. Code
Ann. § 21.001(3))); Acevedo Lopez v. Police Dep’t, 247 F.3d 26, 28–29
(1st Cir. 2001) (holding that Puerto Rico’s enactment of legislation
prohibiting “employment discrimination on the basis of disability
in a similar fashion as the ADA” was insufficient to waive
immunity to claims brought under the ADA); cf. Faibisch v.
University of Minn., 304 F.3d 797, 799–800 (8th Cir. 2002) (holding
that a statutory provision permitting state employees to bring ADA
claims in state court did not waive the state’s immunity to ADA
suits brought in federal court). The Supreme Court has held that “a
3. Accordingly, Blauer’s contention that he should have been
permitted to conduct discovery on the question of whether Utah
received ADA funds also fails.
20130047‐CA 	2014 UT App 100	7

Blauer v. Department of Workforce Services
State’s consent to suit in its own courts is not a waiver of its
immunity from suit in federal court.” Sossamon v. Texas, 131 S. Ct.
1651, 1658 (2011). Furthermore, due to “the vital role of the doctrine
of sovereign immunity in our federal system,” the Supreme Court
has consistently held that a state’s waiver of sovereign immunity,
both with respect to “whether it may be sued” and “where it may
be sued,” must “be unequivocally expressed.” Pennhurst, 465 U.S.
at 99 (emphasis omitted). Contrary to the Georgia Court of
Appeals’ conclusion, we do not consider Utah’s creation of an
administrative remedy for disability discrimination in employment
to constitute a clear and unequivocal waiver of its immunity from
ADA suit either in state or in federal court. 4 It was the State of
Utah’s prerogative to consent to be subject to administrative claims
for violations of state law without necessarily also consenting to be
sued in state or federal court for 	violations of comparable
provisions of the ADA.5
4. We also do not agree that representations made by the State of
Utah regarding its intent to comply with the ADA necessarily
constitute a waiver of immunity. See Dohmen v. Iowa Dep’t for the
Blind, 794 N.W.2d 295, 303 (Iowa Ct. App. 2010) (holding that the
Iowa Department for the Blind did not waive its immunity under
the ADA by purporting to comply with it).
5. Blauer asserts that even if he cannot seek a money judgment
against DWS due to sovereign immunity, he should be permitted
to seek reinstatement under the ADA because equitable claims are
recognized under Utah law as being excepted from general
sovereign immunity rules. See El Rancho Enters., Inc. v. Murray City
Corp., 565 P.2d 778, 779–80 (Utah 1977). DWS counters that the
equitable relief Blauer seeks—reinstatement—is not available
because his termination has been fully litigated. See Blauer II, 2007
UT App 280, ¶¶ 1–3, 167 P.3d 1102 (explaining that the Career
Services Review Board had affirmed Blauer’s termination for
failing to return to work within a year of his beginning FMLA leave
continue...
20130047‐CA 	2014 UT App 100	8

Blauer v. Department of Workforce Services
II. Constitutionality of the UADA
¶11 	Blauer also argues that a determination that his ADA claims
are barred by sovereign immunity creates a catch‐22 for state
employees 	because 	the 	UADA 	permits 	the 	Division 	of
Antidiscrimination and Labor (the Division) to “transfer a request
for agency action . . . to the federal [EEOC]” and provides that such
a transfer constitutes a “commencement of an action under federal
law” that “bars 	the commencement or continuation of 	any
adjudicative 	proceeding 	before 	the 	[Labor 	Commission] 	in
connection with the same claims.” Utah Code Ann. § 34A‐5‐
107(1)(d), (16)(a)–(b) (LexisNexis 2011). Blauer contends that these
provisions unconstitutionally allow the Division to convert a state
employee’s state disability discrimination claims to federal ADA
claims, knowing full well that the ADA claims will be barred by
5. ...continue
and upholding that decision based on Blauer’s failure to timely
petition 	this 	court 	for 	judicial 	review). 	Blauer 	asserts 	that
reinstatement is still a valid remedy and that he should be
“permitted to adduce evidence that both his departure from DWS
in 2003, and his termination in 2004, were the direct and proximate
result of DWS’s knowing refusal to accommodate his disability.”
Since this is essentially the same argument Blauer used to contest
his termination initially, see Brief for Petitioner at 15–17, Blauer II,
2007 UT App 280, 167 P.3d 1102 (No. 20060702), his pursuit of
reinstatement via his ADA claims appears to be nothing more than
an attempt to relitigate the same issues that have already been
decided. And the fact that this court did not reach the merits of the
termination challenge due to the untimeliness of Blauer’s petition
for appellate review, see Blauer II, 2007 UT App 280, ¶ 1, does not
negate the finality of the termination decision, as Blauer appears to
suggest. The matter is therefore settled, and reinstatement is no
longer an available remedy. Because this leaves Blauer with no
equitable claim to pursue, the asserted exception to sovereign
immunity does not apply.
20130047‐CA 	2014 UT App 100	9

Blauer v. Department of Workforce Services
sovereign immunity, and thereby foreclose the employee from
pursuing any remedy under either state or federal law.
¶12 	Blauer lacks standing to raise this claim, however, because
his case was not transferred to the EEOC by the Division and the
Division therefore was not responsible for triggering the UADA’s
exclusive remedy provision. See generally Provo City Corp. v.
Thompson, 2004 UT 14, ¶ 9, 86 P.3d 735 (“In order to meet the basic
requirements of standing, a party must allege that he or she has
suffered or will imminently suffer an injury that is fairly traceable
to the conduct at issue such that a favorable decision is likely to
redress the injury.”). Rather, Blauer himself filed a claim with the
EEOC, which, in turn, gave him permission to pursue a civil
action. 6 Thus, 	it 	was 	Blauer’s 	own 	actions 	that 	led 	to 	the
commencement of a federal suit and barred him from pursuing a
remedy under the UADA. We therefore need not determine
whether a transfer of a UADA claim to the EEOC by the Division
would constitute an unconstitutional deprivation of a remedy for
injury, see Utah Const. art. 1, § 11, or a waiver of sovereign
immunity with respect to that claim.
CONCLUSION
¶13 	We 	hold 	that 	DWS 	is 	immune 	from 	suit 	under 	the
reasonable accommodation provisions of the ADA and that the
State of Utah has not waived its sovereign immunity under the
ADA either by accepting federal ADA funds or by enacting the
UADA. Furthermore, we decline to consider Blauer’s constitutional
6. Blauer appears to rely on this grant of permission in support of
his waiver argument, asserting that it was the State of Utah that
notified him of his right to sue. However, the letter informing him
of that right was sent by the Civil Rights Division of the United
States Department of Justice, not the State of Utah. Thus, his claim
that the State granted him the right to sue is inaccurate.
20130047‐CA 	2014 UT App 100	10

Blauer v. Department of Workforce Services
challenge to the UADA because Blauer’s alleged injuries did not
arise as a result of the contested provisions and he therefore lacks
standing to challenge them. Accordingly, we affirm the trial court’s
dismissal of Blauer’s ADA and UADA claims.
20130047‐CA 	2014 UT App 100	11