The opinion of the court was delivered by: Milton I. Shadur, S.U.S.D.J.
MEMORANDUM OPINION AND ORDER
This employment discrimination action, sought to be advanced under the
Americans with Disabilities Act ("ADA") by Marilyn Rizzato-Reines
("Rizzato-Reines") against her former employer the Kane County Sheriff,
poses some questions left unanswered — at least expressly — by
the Supreme Court's decision this Term in Board of Trustees of the of
Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955 (2001).*fn1 Trustees v.
Garrett, answering (as always) the only question specifically posed to
the Court, held that any imposition of liability on a State for damages
based on ADA-violative conduct ran afoul of the Eleventh Amendment. This
memorandum opinion and order determines that the Trustees v. Garrett
analysis also compels dismissal on Eleventh Amendment grounds of
Rizzato-Reines' damages claim for Sheriff's alleged discriminatory
conduct against her, as well as her money claims for damages stemming
from the Sheriff's alleged retaliation and for any attorneys' fees,
though it is less clear what impact the Supreme Court's decision has on
her added claims for reinstatement and for reasonable accommodation to
her claimed disability.
To begin with, during her employment by the Sheriff Rizzato-Reines
worked in the warrant division, carrying out court-related functions in
the Sheriff's Office (Complaint ¶¶ 18-19). That activity placed her
within the Sheriff's sphere of action "as an arm of the Illinois state
judicial system" (Scott v. O'Grady, 975 F.2d 366, 371 (7th Cir. 1992)),
rather than as part of the Sheriff's work for Cook County.
With that being the case, it becomes necessary to examine the
fundamental premises underlying Trustees v. Garrett, as stated by Chief
Justice Rehnquist for the Supreme Court's five — Justice majority.
Although as said earlier the direct holding was limited to the
confirmation of State immunity from having to pay damages — the
only question posed squarely by that litigation — the analytical
path traveled en route to that destination compels the extension of the
identical principle to the entire situation posed here.
Because the Trustees v. Garrett majority held that ADA's legislative
findings lacked the required reference to such a pattern of employment
discrimination on the part of States, it concluded that it would not be
proper to enforce against the States "the rights and remedies created by
the ADA" (id. at 966). And in that regard the Court majority expressly
adverted to the statutory "reasonable accommodation" requirement (id. at
For example, whereas it would be entirely rational (and
therefore constitutional) for a state employer to
conserve scarce financial resources by hiring employees
who are able to use existing facilities, the ADA
requires employers to "mak[e] existing facilities used
by employees readily accessible to and usable by
individuals with disabilities." 42 U.S.C. § 12112
(5)(B), 12111(9). The ADA does except employers
from the "reasonable accommodatio[n]" requirement where
the employer "can demonstrate that the accommodation
would impose an undue hardship on the operation of the
business of such covered entity." § 12112(b)(5)(A).
However, even with this exception, the accommodation
duty far exceeds what is constitutionally required in
that it makes unlawful a range of alternate responses
that would be reasonable but would fall short of
imposing an "undue burden" upon the employer. The Act
also makes it the employer's duty to prove that it
would suffer such a burden, instead of requiring (as
the Constitution does) that the complaining party
negate reasonable bases for the employer's decision.
Because Rizzato-Reines' claim that her firing was in retaliation for
her exercise of ADA-created rights would also call for payment out of the
State treasury, Trustees v. Garrett also compels the rejection of that
remedy on Eleventh Amendment grounds. And the same is of course true of
her request for attorneys' fees.
All that remains potentially viable, then, is Rizzato-Reines' complaint
that the Sheriff did not provide her with reasonable accommodation for
her claimed carpal tunnel syndrome disability. That might arguably fit
within the familiar doctrine, adverted to in Trustees v. Garrett, Id. at
968 n.9 (emphasis added), that injunctive relief may still lie against a
State official under Ex parte Young:
Our holding here that Congress did not validly abrogate
the States' sovereign immunity from suit by private
individuals for money damages under Title I does not
mean that persons with disabilities have no federal
recourse against discrimination. Title I of the ADA
still prescribes standards applicable to the States.
Those standards can be enforced by the United States in
actions for money damages, as well as by private
individuals in actions for injunctive relief under Ex
parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714
But in this instance that possibility would necessitate the issuance of a
mandatory injunction that the Sheriff must rehire Rizzato-Reines and
transfer her to another job.
On that score, even though a motion to dismiss a complaint calls for
crediting the plaintiff's allegations, in this instance the impact of the
Eleventh Amendment includes a shift to the complaining employee of the
burden that ADA otherwise imposes on private employers (see the final
sentence of this opinion's first quotation from Trustees v. Garrett).
And in that respect Rizzato-Reines faces a pair of hurdles:
1. Reinstatement in employment discrimination cases
is an equitable remedy that is not ordered when it is
contraindicated by the deterioration in relationship
that is the typical adjunct of an employee's firing
(whether justified or not). Indeed, that is the reason
that back pay is viewed as an equitable rather than
legal remedy: It is a make-whole remedy that takes the
place of reinstatement. So where as here there would
be no basis for ordering actual reinstatement in light
of what the Sheriff has said in Answer ¶ 12 and
his Third and Fourth Affirmative Defenses,*fn2 and
where as already said the alternative remedy of
damages is foreclosed by the Eleventh Amendment, any
reinstatement claim must fail as well.
2. In any event, nothing in the Complaint "negate[s]
reasonable bases for the employer's decision" (Trustees v.
Garrett, 121 S.Ct. at 967). And that is not simply a
pleading flaw, for what has been said in the preceding
numbered paragraph would ...