W.D. Ky: No Sov. Immunity for Title V of ADA

A district court in the Western District of Kentucky held that Congress properly abrogated state sovereign immunity with regard to a retaliation claim under Title V of the Americans with Disabilities Act (ADA).  The suit was brought by a teacher who alleged that a blind student had not been reasonably accommodated by the college that employed her.  The teacher was supported by a brief by the US government arguing in support of the validity of the abrogation of immunity.  McCollum v. Owensboro Community & Technical College, 2010 WL 5393852, No. 4:09CV-00121-M (W.D. Ky Dec. 22, 2010).  The judge is a Clinton appointee.

Linda McCollum was an instructional specialist at the college.  She attempted to help a blind student obtain accommodations, such as Braille signs and books, by voicing her concerns to administrators.  She alleged that she then received hostile treatment, including constructive discharge, in retaliation.  Her employment discrimination claim under Title I of the ADA was dismissed, based on the sovereign immunity of the college.

The court noted that neither the Supreme Court nor the Sixth Circuit has reached the issue of the validity of the abrogation of sovereign immunity for a Title V retaliation claim.  The Supreme Court has held that the abrogation was invalid for employment claims under Title I of the ADA, but valid for at least some claims under Title II, which reaches public services, programs, and activities.  (See my Clearinghouse Review article here.)  The district court cited numerous cases from other district courts, some upholding the abrogation for a Title V claim, and others rejecting the validity of the abrogation for a Title V claim.  The Kentucky court reasoned that the cases hinged upon whether the underlying claim alleged retaliation for objecting to employment discrimination under Title I of the ADA or for objecting to discrimination in public services, programs, and activities under Title II of the ADA.  The court concluded that if the retaliation was for objecting to employment discrimination, then it would be barred by sovereign immunity, but if the retaliation related to an objection of discrimination in public services, then it would not be barred.

While the college tried to characterize the claim as falling solely under Title I, McCollum was aided by the brief in her support by the US government.  McCollum and the US both asserted that the complaint pled retaliation “in response to her efforts in helping a student enforce his right of access to public education.” The court agreed with McCollum and the US that the “retaliation claim is predicated on Title II of the ADA because she objected to acts of [the college] that were allegedly unlawful under Title II.”  The court explained: “The fact that the retaliation McCollum suffered took the form of an employment action does not convert this into a case about Title I employment discrimination against individuals with disabilities.”  The court concluded: “because the State is not immune from an underlying Title II discrimination claim, the State is also not immune from McCollum’s claim alleging retaliation due to her opposition of that conduct.”

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