Full Opinion (html_with_citations)

24-1263
Yerdon v. Poitras


                         United States Court of Appeals
                            For the Second Circuit

                                         August Term 2024

                                    Argued: October 31, 2024
                                   Decided: November 5, 2024

                                             No. 24-1263



                                       EDWARD A. YERDON,

                                         Plaintiff-Appellant,

                                                   v.

     KARIN POITRAS, ELIZABETH SEELOFF, NEW YORK STATE DEPARTMENT OF MOTOR
                                    VEHICLES,

                                       Defendants-Appellees. ∗




                         Appeal from the United States District Court
                           for the Northern District of New York
                          No. 21-cv-565, Lawrence E. Kahn, Judge.



          Before: KEARSE, SULLIVAN, and ROBINSON, Circuit Judges.

      Plaintiff Edward Yerdon, proceeding pro se, appeals from a judgment of the
United States District Court for the Northern District of New York (Kahn, J.)
dismissing his claims for employment discrimination under Title I and retaliation


∗
    The Clerk of Court is respectfully directed to amend the official case caption as set forth above.
under Title V of the Americans with Disabilities Act (the “ADA”) against his
former employer, the New York State Department of Motor Vehicles (the “DMV”);
his former supervisor, Karin Poitras; and an employee at the Governor’s Office of
Employee Relations, Elizabeth Seeloff. The district court dismissed Yerdon’s suit
for failure to state a claim.
       As a threshold matter, we must first address whether sovereign immunity
bars this suit and whether the ADA permits suits against individual employees
and supervisors like Poitras and Seeloff. We hold that (1) sovereign immunity bars
Yerdon’s Title I claims against the DMV, as well as Poitras and Seeloff in their
official capacities; (2) as a matter of first impression, sovereign immunity also bars
Title V retaliation claims predicated on an alleged violation of Title I; (3) Poitras
and Seeloff cannot be sued in their individual capacities for retaliation because
Title V does not allow for individual liability; and (4) as a matter of first
impression, Title I likewise does not permit suits against individual employees like
Poitras and Seeloff. Accordingly, we AFFIRM the judgment of the district court.

      AFFIRMED.

                                 EDWARD A. YERDON, pro se, Cohoes, NY, for
                                 Plaintiff-Appellant.

                                 DOUGLAS E. WAGNER, Assistant Solicitor General
                                 (Barbara D. Underwood, Solicitor General, Jeffrey
                                 W. Lang, Deputy Solicitor General, on the brief), for
                                 Letitia James, Attorney General for the State of
                                 New York, Albany, NY, for Defendants-Appellees.

PER CURIAM:

      Plaintiff Edward Yerdon, proceeding pro se, appeals from a judgment of the

United States District Court for the Northern District of New York (Kahn, J.)

dismissing his claims for employment discrimination under Title I and retaliation

under Title V of the Americans with Disabilities Act (the “ADA”) against his



                                          2
former employer, the New York State Department of Motor Vehicles (the “DMV”);

his former supervisor, Karin Poitras; and an employee at the Governor’s Office of

Employee Relations, Elizabeth Seeloff. 1 The district court dismissed Yerdon’s suit

for failure to state a claim.

       As a threshold matter, we must first address whether sovereign immunity

bars this suit and whether the ADA permits suits against individual employees

and supervisors like Poitras and Seeloff. For the reasons set forth below, we hold

that (1) sovereign immunity bars Yerdon’s Title I claims against the DMV, as well

as Poitras and Seeloff in their official capacities; (2) as a matter of first impression,

sovereign immunity also bars Title V retaliation claims predicated on an alleged

violation of Title I; (3) Poitras and Seeloff cannot be sued in their individual

capacities for retaliation because Title V does not allow for individual liability; and

(4) as a matter of first impression, Title I likewise does not permit suits against

individual employees like Poitras and Seeloff. Accordingly, we AFFIRM the

judgment of the district court.




1Yerdon’s complaint did not assert any claims of discrimination or retaliation under New York
law, so our opinion only addresses the viability of his federal-law claims.


                                              3
                               I.     BACKGROUND

      On May 17, 2021, Yerdon filed a pro se complaint against the Defendants,

asserting claims for employment discrimination and retaliation under the ADA.

Principally, he alleged that while he was a probationary employee at the DMV, he

disclosed his disability to his supervisor, Poitras, who subsequently began

“treat[ing him] differently by removing tasks” and “limiting [his] responsibilities.”

Dist. Ct. Doc. No. 1 at 5.     According to Yerdon, Poitras gave him negative

performance reviews, gave him an unspecified “ultimatum,” and did not follow

the work accommodation he had received. Id. Finally, Yerdon alleged that he

complained to Seeloff, who did not intervene on his behalf. Ultimately, Yerdon

was terminated and commenced this action.

      The Defendants moved to dismiss Yerdon’s complaint on the grounds that

sovereign immunity under the Eleventh Amendment barred such a suit against

the state and that the district court therefore lacked subject-matter jurisdiction.

The Defendants further argued that the complaint failed to state a claim under the

ADA because the ADA does not permit suits against individual defendants like

Poitras and Seeloff and because Yerdon had not plausibly alleged the necessary

components of an ADA claim.         The district court concluded that sovereign




                                          4
immunity did not bar Yerdon’s suit. However, the court determined that Yerdon

had failed to state a claim under the ADA, reasoning that the ADA does not permit

suits against individual employees and Yerdon had not adequately pleaded that

he is disabled as defined in the ADA. Yerdon then appealed, arguing that he has

“many times provided details of [his] disability” and thus sufficiently alleged that

he was covered by the ADA. Yerdon Br. at 3. He further requested that this Court

“amend the original suit and . . . permit [his] suit to focus only on the individuals,”

Poitras and Seeloff. Id.

                             II.     STANDARD OF REVIEW

       We review a district court’s grant of a motion to dismiss de novo, see Costin

v. Glens Falls Hosp.,
103 F.4th 946
, 952 (2d Cir. 2024), and may affirm on any basis

supported by the record, even if the district court did not rely on the relevant

ground, see Citrus Mktg. Bd. of Isr. v. J. Lauritzen A/S,
943 F.2d 220
, 223 (2d Cir. 1991).

In reviewing a motion to dismiss, we construe pro se submissions liberally to raise

the strongest arguments they suggest. See Sharikov v. Philips Med. Sys. MR, Inc.,
103 F.4th 159
, 166 (2d Cir. 2024).




                                            5
              III.     ELEVENTH AMENDMENT SOVEREIGN IMMUNITY

        The Eleventh Amendment provides that “state governments may not be

sued in federal court unless they have waived their Eleventh Amendment

immunity, or unless Congress has abrogated the states’ Eleventh Amendment

immunity when acting pursuant to its authority under Section 5 of the Fourteenth

Amendment.” Gollomp v. Spitzer,
568 F.3d 355, 366
 (2d Cir. 2009) (alterations

accepted and internal quotation marks omitted). Sovereign immunity bars suits

not only against the state itself but also against state officials when sued in their

official capacities. See Ford v. Reynolds,
316 F.3d 351, 354
 (2d Cir. 2003).

        As recounted above, the district court concluded that the Eleventh

Amendment does not protect the Defendants here from suit, but it did so under

the wrong title of the ADA. Specifically, the district court analyzed the immunity

question believing that Yerdon’s claims arose under Title II of the ADA, which

pertains to discrimination in the provision of public services. See Noel v. N.Y.C.

Taxi & Limousine Comm’n,
687 F.3d 63, 68
 (2d Cir. 2012). But this dispute involves

allegations of employment discrimination, which are clearly governed by Title I of

the ADA. See Mary Jo C. v. N.Y. State & Loc. Ret. Sys.,
707 F.3d 144
, 169–71 (2d Cir.

2013)    (explaining    that   the   ADA    “unambiguously       limits   employment




                                           6
discrimination claims to Title I”). And it is well-established that Congress has not

validly abrogated the states’ sovereign immunity for claims arising under Title I.

See Bd. of Trs. of Univ. of Ala. v. Garrett,
531 U.S. 356, 360
 (2001). Nor has New York

waived its immunity. 2 We therefore conclude that sovereign immunity bars

Yerdon’s Title I claims against the DMV.

       In addition to his Title I claims, Yerdon asserts claims for retaliation, which

arise under Title V of the ADA. We have not yet addressed whether Congress has

validly abrogated the states’ sovereign immunity for Title V claims. We must

therefore ask (1) “whether Congress unequivocally expressed its intent to abrogate

[sovereign] immunity” for retaliation claims and, if so, (2) “whether Congress

acted pursuant to a valid grant of constitutional authority.” Kimel v. Fla. Bd. of

Regents,
528 U.S. 62, 73
 (2000). Because Congress has clearly expressed its intention

to abrogate state sovereign immunity for all claims under the ADA, see
42 U.S.C. § 12202
 (“A [s]tate shall not be immune under the [E]leventh [A]mendment to the

Constitution of the United States from an action in [f]ederal or [s]tate court of

competent jurisdiction for a violation of this chapter.”), we must focus our

attention on the second question.



2We recognized this in our nonprecedential decision in Nicolae v. Office of Vocational & Educational
Services for Individuals with Disabilities,
257 F. App’x 455, 457
 (2d Cir. 2007).


                                                 7
      As the Supreme Court has explained, “Congress may not . . . base its

abrogation of the [s]tates’ Eleventh Amendment immunity upon the powers

enumerated in Article I.” Garrett,
531 U.S. at 364
. Instead, it must rely on its

enforcement powers under section 5 of the Fourteenth Amendment.                 See
id.

Congress’s exercise of its section 5 enforcement powers must, in turn, exhibit

“congruence and proportionality between the injury to be prevented or remedied

and the means adopted to that end.” City of Boerne v. Flores,
521 U.S. 507, 520

(1997). As a result, we must determine, inter alia, “whether Congress identified a

history and pattern of unconstitutional . . . discrimination by the [s]tates.” Garrett,
531 U.S. at 368
.

      The Supreme Court has already instructed us that “[t]he legislative record

of the ADA . . . simply fails to show that Congress . . . identif[ied] a pattern of

irrational state discrimination in employment against the disabled.”
Id.
 Likewise,

“Congress’s legislative findings do not reveal a history of the [s]tates retaliating

against their employees for opposing disability discrimination.” Stanley v. W.

Mich. Univ.,
105 F.4th 856
, 866 (6th Cir. 2024); see
42 U.S.C. § 12101
(a). Nor do the

congressional committee reports “discuss employment retaliation based on

opposing disability discrimination in the public sector.” Stanley, 105 F.4th at 866.




                                          8
       Because Congress did not identify a history and pattern of retaliation by

states against their employees who challenge discrimination against the disabled,

Congress did not have the constitutional authority to abrogate the states’

sovereign immunity for ADA retaliation claims, at least to the extent those claims

are predicated on an alleged violation of Title I of the ADA. 3 Indeed, if “the

underlying provision – here, Title I – does not allow a plaintiff to assert a claim

against the [s]tate, it logically follows that a Title V claim that is based on the

exercise of a right arising only from Title I cannot be levied against the [s]tate.”

Dupree v. Owens,
92 F.4th 999
, 1007 (11th Cir. 2024).

       In reaching this holding, we join every other circuit that has pronounced on

this issue, see Stanley, 105 F.4th at 866; Dupree, 92 F.4th at 1007; Block v. Tex. Bd. of

L. Exam’rs,
952 F.3d 613
, 619 (5th Cir. 2020); Demshki v. Monteith,
255 F.3d 986
, 988–

89 (9th Cir. 2001), and affirm the long-standing and universal consensus of district

courts in this circuit, see, e.g., Padilla v. N.Y. State Dep’t of Lab., No. 09-cv-5291 (CM),



3Our holding today does not address whether Congress validly abrogated the states’ sovereign
immunity for Title V retaliation claims predicated on alleged violations of other titles of the ADA.
For example, Congress has validly abrogated sovereign immunity for at least some violations of
Title II of the ADA where fundamental rights are implicated. See Tennessee v. Lane,
541 U.S. 509, 530
 (2004). Therefore, a Title V claim premised on certain violations of Title II might not be barred
by sovereign immunity. See Block v. Tex. Bd. of L. Exam’rs,
952 F.3d 613
, 619 (5th Cir. 2020) (“[A]
plaintiff may bring a [Title V] retaliation claim against a state entity only to the extent that the
underlying claim of discrimination effectively abrogates sovereign immunity of the particular
state.”). However, we leave that question, which is not before us, for another day.


                                                 9
2010 WL 3835182
, at *4 (S.D.N.Y. Sept. 13, 2010) (“[E]very district court in this

Circuit to consider the issue has concluded that sovereign immunity bars Title V

claims.”); Quadir v. N.Y. State Dep’t of Lab.,
39 F. Supp. 3d 528, 536
 (S.D.N.Y. 2014)

(“[D]istrict courts within this Circuit have consistently extended Garrett’s holding

to ADA Title V retaliation claims – at least to the extent that those claims are

predicated on ADA Title I discrimination claims.”); Chiesa v. N.Y. State Dep’t of

Lab.,
638 F. Supp. 2d 316, 323
 (N.D.N.Y. 2009) (“If a state is immune from

underlying discrimination, then it follows that the state must be immune from

claims alleging retaliation for protesting against discrimination.”); Davis v. Vt.,

Dep’t of Corr.,
868 F. Supp. 2d 313, 322
 (D. Vt. 2012) (“[T]he district courts in the

Second Circuit that have addressed the issue have all concluded that Title V claims

are barred by the Eleventh Amendment.”); Emmons v. City Univ. of N.Y.,
715 F. Supp. 2d 394, 408
 (E.D.N.Y. 2010); Murray v. Tanea,
357 F. Supp. 3d 226, 231

(W.D.N.Y. 2019).

      In addition to his claims against the DMV, Yerdon has asserted claims

against two state officials, Poitras and Seeloff. It is unclear whether Yerdon

intended to file those claims against Poitras and Seeloff in their individual or

official capacities, but to the extent these claims are asserted against Poitras and




                                         10
Seeloff in their official capacities, they are also barred by sovereign immunity. See

Ford,
316 F.3d at 354
 (holding that sovereign immunity bars suits against state

officials when sued in their official capacities).

                            IV.    INDIVIDUAL LIABILITY

      We also must address whether Yerdon can maintain his discrimination and

retaliation claims against Poitras and Seeloff in their individual capacities. We

have previously held that individual employees cannot be held liable under the

ADA’s retaliation provisions, which disposes of Yerdon’s Title V claims against

Poitras and Seeloff. See Spiegel v. Schulmann,
604 F.3d 72
, 79–80 (2d Cir. 2010). With

respect to Title I, we have suggested in nonprecedential summary orders that “the

ADA . . . do[es] not provide for actions against individual supervisors,” Darcy v.

Lippman,
356 F. App’x 434, 437
 (2d Cir. 2009); see also Iwelu v. N.Y. State Off. of

Mental Health, No. 22-3096,
2024 WL 2175938
, at *2 n.5 (2d Cir. May 15, 2024)

(“[T]here is no individual liability under [the ADA].”), but we have not squarely

addressed this question in a precedential opinion. We do so here today and hold

that Title I does not permit plaintiffs to bring damages claims against individual

employees.




                                           11
      “When interpreting a statute, we begin with the text.” Pfizer, Inc. v. U.S.

Dep’t of Health & Hum. Servs.,
42 F.4th 67
, 73 (2d Cir. 2022) (alterations accepted

and internal quotation marks omitted). Section 12112 limits the scope of Title I’s

coverage to “covered entit[ies],” which are prohibited from “discriminat[ing]

against a qualified individual on the basis of disability.” Section 12111(2) defines

“covered entity” to include only “an employer, employment agency, labor

organization, or joint labor-management committee.” And “employer” refers to

“a person engaged in an industry affecting commerce who has 15 or more

employees . . . and any agent of such person.”
42 U.S.C. § 12111
(5)(A).

      Despite the statute’s reference to “any agent of such person,” we have held

that a nearly identical definition of employer used in Title VII of the Civil Rights

Act does not impose individual liability. See Tomka v. Seiler Corp.,
66 F.3d 1295
,

1313–17 (2d Cir. 1995). We explained that because “Congress intended to limit

liability to employer-entities with fifteen or more employees” and thus spare small

entities from the costs associated with litigating discrimination claims, it would

make little sense to read the statute as simultaneously permitting suits against

individual employees.
Id. at 1314
. Moreover, when Title VII was first enacted, the

only available remedies were reinstatement and backpay, which “are most




                                         12
appropriately provided by employers, defined in the traditional sense of the

word,” and not by individual employees.
Id.
 Even though Congress subsequently

amended Title VII in 1991 to permit compensatory and punitive damages, it

calibrated the amount of damages to the size of the employer, and none of the

provisions addressed the calculation of damage awards against individuals. See
id. at 1315
.   Accordingly, “it appears that Congress contemplated that only

employer-entities could be held liable for compensatory and punitive damages,

because if Congress had envisioned individual liability it would have included

individuals in th[e] litany of limitations and discontinued the exemption for small

employers.”
Id.
 (alterations accepted and internal quotation marks omitted). We

also noted that individual liability under Title VII could lead to inequitable

outcomes – for example, an individual employee could be left holding the bag if

the employer were to declare bankruptcy. See
id.
 at 1315–16. Given that the

statutory language and 1991 amendments are identical for Title VII and Title I, we

believe that the reasoning we set forth in Tomka applies with equal force to Title I.

      Perhaps not surprisingly, at least six of our sister circuits have reached the

same conclusion – that Title I does not permit suits against individual employees.

See RomĂĄn-Oliveras v. P.R. Elec. Power Auth.,
655 F.3d 43
, 51–52 (1st Cir. 2011) (“We




                                         13
. . . agree with the virtually universal view that Title I of the ADA . . . addresses

the conduct of employers only and does not impose liability on co-workers.”

(internal quotation marks omitted)); Sullivan v. River Valley Sch. Dist.,
197 F.3d 804
,

808 n.1 (6th Cir. 1999); EEOC v. AIC Sec. Investigations, Ltd.,
55 F.3d 1276
, 1282 (7th

Cir. 1995); Walsh v. Nev. Dep’t of Hum. Res.,
471 F.3d 1033
, 1037–38 (9th Cir. 2006);

Butler v. City of Prairie Vill.,
172 F.3d 736
, 744 (10th Cir. 1999); Albra v. Advan, Inc.,
490 F.3d 826, 830
 (11th Cir. 2007). District courts in this circuit have likewise

consistently concluded that Title I does not permit individual liability. See, e.g.,

Murray,
357 F. Supp. 3d at 230
; Myers v. N.Y. Dep’t of Motor Vehicles, No. 06-cv-4583

(NG),
2013 WL 3990770
, at *9 (E.D.N.Y. Aug. 5, 2013) (“[N]umerous district courts

in this circuit have persuasively held that there is no individual liability under Title

I . . . of the ADA.”); Sutherland v. N.Y. State Dep’t of L., No. 96-cv-6935 (JFK),
1999 WL 314186
, at *7 (S.D.N.Y. May 19, 1999) (collecting cases); Arcuri v. Schoch, No.

15-cv-798 (DNH),
2015 WL 5652336
, at *5 (N.D.N.Y. Sept. 24, 2015) (“[M]any

district courts in this circuit, as well as other circuit courts, have held that

individual defendants may not be held personally liable for alleged violations of

Title I of the ADA.”); Credle-Brown v. Connecticut,
502 F. Supp. 2d 292, 298
 (D. Conn.




                                           14
2007); Boyens v Anderson, No. 20-cv-93 (WKS),
2021 WL 5580055
, at *2 (D. Vt. Nov.

30, 2021). Indeed, we have not come across a single court that has held otherwise.

      Today, we join this consensus and hold that Title I does not permit suits

against individual employees. We therefore affirm the dismissal of Yerdon’s

employment-discrimination claims against Poitras and Seeloff in their individual

capacities.

                             V.      LEAVE TO AMEND

       For the first time on appeal, Yerdon argues that he should be given the

opportunity to amend his complaint to assert claims against Poitras and Seeloff

only. However, as described above, neither Title I nor Title V of the ADA permits

claims against individual employees, and sovereign immunity bars such claims

against state officials in their official capacities. As a result, granting leave to

amend here would be futile and is not warranted. See Cuoco v. Moritsugu,
222 F.3d 99, 112
 (2d Cir. 2000).

                               VI.    CONCLUSION

      We have considered Yerdon’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.




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