Submitted November 13, 2013.
Appeal from United States District Court for the District of South Dakota - Pierre.
For Tim Lors, acting in his own capacity, Plaintiff - Appellant: Samuel R. Bagenstos, Ann Arbor, MI.
For Jim Dean, acting in his official capacity, Deb Dufour, acting in her official and individual capacities, Kim Stahl, acting in her official and individual capacities, Otto Doll, acting in his official and individual capacities, Bureau of Telecommunications, The State of South Dakota, Attorney General: Marty Jackley, Governor: Michael Rounds, Defendants - Appellees: Douglas Arthur Abraham, Timothy M. Engel, MAY & ADAM, Pierre, SD.
Before WOLLMAN, MURPHY, and SMITH, Circuit Judges.
SMITH, Circuit Judge.
Tim Lors sued his employer, the South Dakota Bureau of Information and Technology (BIT), and various state employees (collectively, " defendants" ), alleging retaliation in response to a prior discrimination suit that he filed against the same defendants. Lors's complaint asserted jurisdiction under various federal statutes, including Titles I and V of the Americans With Disabilities Act of 1990 (ADA). The district court granted summary judgment to the defendants on the merits. Lors appealed, and we issued a sua sponte order for supplemental briefing to address whether sovereign immunity bars Lors's claims. Upon review, we held that sovereign immunity barred Lors's claims for money damages against the defendants, and we dismissed the appeal for lack of jurisdiction. Lors v. Dean, 726 F.3d 1036 (8th Cir. 2013), reh'g granted & opinion vacated October 2, 2013.
Thereafter, Lors petitioned for en banc rehearing and panel rehearing. He argued, among other things, that the court failed to follow the Supreme Court's decisions in Tennessee v. Lane, 541 U.S. 509, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004), and United States v. Georgia, 546 U.S. 151, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006). He also asserted that this court failed to certify the question of the constitutionality of the federal statute to the Attorney General as required by 28 U.S.C. § 2403(a) and Fed. R. App. P. 44(a). We granted panel rehearing
in this case, vacated our earlier opinion and judgment, and " directed [the parties] to file supplemental briefs addressing . . . Lane . . . and . . . Georgia . . . [,] as well as Lors's contention that this court failed to certify the question of the constitutionality of the federal statute to the Attorney General as required by 28 U.S.C. § 2403(a) and Fed. R. App. P. 44(a)." We now affirm the district court's grant of summary judgment to the defendants on the merits.
The BIT employed Lors as a Computer Support Team Leader until November 2004 when Lors's supervisors transferred him to a Computer Support Analyst position. After his transfer, Lors filed a complaint in federal court, alleging discrimination under Section 504 of the Rehabilitation Act of 1973 and the ADA. Animosity and mistrust developed between Lors and his coworkers, in part because his coworkers learned that Lors made, and continued to make, secret recordings of his conversations at work. On December 15, 2008, the district court granted summary judgment to the defendants on Lors's discrimination claim. Lors v. Dean, No. 07-3017, 2008 WL 5233105 (D.S.D. Dec. 15, 2008). Lors appealed the court's grant of summary judgment to this court. On March 17, 2009, Lors's supervisors placed him on a 30-day work improvement plan (WIP). Lors failed to meet the goals under the WIP, and the BIT terminated Lors's employment on April 23, 2009. Lors's appeal of his discrimination claim was still pending before this court at the time of his termination. This court subsequently affirmed the district court's grant of summary judgment. Lors v. Dean, 595 F.3d 831 (8th Cir. 2010).
Lors filed a grievance with the South Dakota Career Service Commission (CSC). He argued that the BIT terminated him in retaliation for his filing of the discrimination lawsuit. The CSC determined that the BIT terminated Lors's employment for cause, and it found no credible evidence that the BIT terminated Lors in retaliation for his discrimination-lawsuit filing. The Sixth Judicial Circuit Court of South Dakota, Civ. No. 10-294, affirmed the CSC's findings. Lors did not appeal the state court's decision. Lors then applied for unemployment benefits, and his claim was denied. He appealed the denial, and the Unemployment Insurance Appeals Division of the South Dakota Department of Labor determined that Lors was not eligible for benefits because he had been terminated for misconduct.
Lors then filed the instant action, pro se, in the district court, alleging retaliation and asserting jurisdiction under Titles I and V of the ADA, Title VII of the Civil Rights Act of 1964 (" Title VII" ), and the Civil Rights Act of 1991. The defendants
asserted various defenses and alleged that they were immune to suit under the Eleventh Amendment and the doctrine of sovereign immunity. The defendants moved for summary judgment. The district court evaluated Lors's claim under the McDonnell Douglas burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The court found that Lors established a prima facie case of retaliation, but it also found that the defendants rebutted the resulting " presumption of retaliation by articulating a legitimate, non-retaliatory reason for the adverse employment action." Lors v. Dean, No. 10-3024-RAL, 2012 WL 2970492, at *8 (D.S.D. July 20, 2012) (citing Mitchell v. Iowa Prot. & Advocacy Servs., Inc., 325 F.3d 1011, 1013 (8th Cir. 2003)). The court found that " the CSC, the circuit court affirmance of the CSC ruling, and the Unemployment Insurance Appeals Division rulings all have issue preclusion effect that there existed legitimate non-discriminatory grounds for discipline and termination of Lors." Id. The court then found that
Lors's evidence and explanations are not sufficient as a matter of law to create a genuine issue of material fact as to whether the employer's proffered reasons were pretextual or create an issue of fact on that subject, especially when the findings of two state tribunals have found preclusive effect that there was cause for BIT to discipline Lors and terminate Lors's employment apart from the ADA claim.
Id. Consequently, the district court granted the defendants' motion for summary judgment. Id.
The district court did not address the issue of sovereign immunity. See id . Lors appealed, and both sides briefed the merits of Lors's claim. Because " sovereign immunity . . . is a jurisdictional threshold matter," see Harmon Indus., Inc. v. Browner, 191 F.3d 894, 903 (8th Cir. 1999), and presents " a jurisdictional question that may be raised at any time," United States v. Johnson, 853 F.2d 619, 623 n.7 (8th Cir. 1988) (citations omitted), we issued, sua sponte, an order for supplemental briefing to address whether Lors's claims against the state and its employees under Titles I and V of the ADA were barred by sovereign immunity. Upon review, we held that sovereign immunity barred Lors's claims for money damages against the defendants, and we dismissed the appeal for lack of jurisdiction. Lors, 726 F.3d at 1036.
We granted Lors's petition for panel rehearing to address the application of Tennessee v. Lane, 541 U.S. 509, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004), and United States v. Georgia, 546 U.S. 151, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006), to the present case and whether we must certify the question of the federal statute's constitutionality to the Attorney General.
Questions of sovereign immunity are subject to de novo review. See United
States v. Moser, 586 F.3d 1089, 1092 (8th Cir. 2009); Thomas v. St. Louis Bd. of Police Comm'rs, 447 F.3d 1082, 1084-85 (8th Cir. 2006). Article III of the U.S. Constitution vests " [t]he Judicial power of the United States" in the federal courts. U.S. Const. art. III. The Eleventh Amendment restricts the scope of the judicial power. It provides, in pertinent part, that " [t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State." U.S. Const. amend. XI. By its terms, the Eleventh Amendment does not bar claims against a state by its own citizens. See id . But since 1890, the Supreme Court has held that Eleventh Amendment sovereign immunity extends to claims by a state's own citizens. See Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890).
When Congress enacted the ADA in 1990, it sought to abrogate state sovereign immunity to lawsuits alleging that a state violated its ...