2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-16-2013

Chandler Smith v. Secretary of Department of Env

Precedential or Non-Precedential: Non-Precedential

Docket No. 13-1569

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-1569

___________

CHANDLER P. SMITH,

Appellant

v.

SECRETARY OF DEPARTMENT OF ENVIRONMENTAL PROTECTION 

OF PENNSYLVANIA

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 2:12-cv-02189)

District Judge: Honorable Mitchell S. Goldberg

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

September 13, 2013

Before: FUENTES, VANASKIE and VAN ANTWERPEN, Circuit Judges

(Opinion filed: September 16, 2013)

_________

OPINION

_________

PER CURIAM

Chandler Smith appeals pro se from the District Court’s order granting the 

defendant’s motion to dismiss his complaint. For the following reasons, we will affirm in 

part, vacate in part, and remand to the District Court for further proceedings. 
2

I.

Throughout 2008 and 2009, Chandler Smith interviewed four times for several 

engineering positions with the Department of Environmental Protection (“DEP”), but, 

despite his qualifications, he was not selected for employment. Smith believes that DEP 

refused to hire him because of his age and his disability; he was 55 years old at the time 

that he filed suit, and he wears a prosthetic leg. Smith alleged that during his interview 

with DEP Williamsport, the interviewer stopped the interview after informing Smith that 

the position for which he applied requires that the person be able to inspect a landfill in 

potentially wet weather conditions and on a slope of 3:1. The interviewer also 

“[s]trangely . . . asked where [Smith] was parked . . . and [Smith] said in the handicapped 

parking spot out front.” And during his three interviews with DEP Norristown, according 

to Smith, the interviewer gave him conflicting information about whether he would be 

able to perform the job without accommodations. Smith further alleged that he “observed 

the workforce [at DEP Norristown] as young.” For these reasons, Smith filed an EEOC 

charge in August 2009. Thereafter, he applied for another position with DEP 

Williamsport and, in March 2010, he learned that he had not been selected. 

 In 2012, Smith filed a complaint pro se with the Eastern District, naming the 

Secretary of DEP and the Commonwealth of Pennsylvania as defendants. Smith claimed

that DEP refused to hire him on the basis of age and disability, and in retaliation for filing 

an EEOC charge, in violation of both the Age Discrimination in Employment Act (the 

“ADEA”), 29 U.S.C. § 621, et seq., and the Americans with Disabilities Act, (the 

“ADA”), 42 U.S.C. § 12112, et seq. Smith sought monetary damages and injunctive 
3

relief requiring DEP to hire him. The Secretary of DEP, the lone remaining defendant,1

moved to dismiss the complaint, arguing that Smith’s damages claims against it for an 

alleged failure to comply with the ADA and the ADEA were barred by the Eleventh 

Amendment. The District Court agreed and granted the defendant’s motion to dismiss. 

Smith timely appealed.

II.

We have jurisdiction under 28 U.S.C. § 1291, and we exercise plenary review over

the District Court’s order granting DEP’s motion to dismiss on the basis of Eleventh 

Amendment immunity. Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 252 (3d Cir. 

2010). The Eleventh Amendment renders “an unconsenting State . . . immune from 

liability for damages in a suit brought in federal court by one of its own citizens.” 

Dellmuth v. Muth, 491 U.S. 223, 229 n.2 (1989); see also Bd. of Trs. of Univ. of Ala. v. 

Garrett, 531 U.S. 356, 363-64 (2001) (holding that Congress did not validly abrogate the 

states’ sovereign immunity to damages suits under the ADA); Kimel v. Fla. Bd. of 

Regents, 528 U.S. 62, 91 (2000) (holding that Congress did not validly abrogate the 

states’ sovereign immunity to damages suits under the ADEA). State sovereign 

immunity extends to subsidiary units and individual state employees sued in their official 

capacity. See Betts, 621 F.3d at 254. The Eleventh Amendment does, however, permit 

suits for prospective injunctive relief against state officials. Ex Parte Young, 209 U.S. 

123, 159-60 (1908). 

 

1

Smith subsequently withdrew his claims against the Commonwealth.
4

In ruling on Smith’s complaint, the District Court analyzed the damages claims, 

finding them barred by the Eleventh Amendment. For substantially the reasons given, we 

agree with this conclusion. Accordingly, we will affirm the District Court’s judgment in 

this respect. 

The District Court did not, however, address whether the Eleventh Amendment 

also bars Smith’s injunctive relief claims. And this is a close question to which neither

the Supreme Court nor any of the circuits provides a clear answer. There does appear to 

be agreement that injunctive relief returning a former employee to employment is 

permissible. See Dotson v. Griesa, 398 F.3d 156, 178 (2d Cir. 2005) (finding the 

Eleventh Amendment did not bar claim for reinstatement to previous employment

because it merely “return[ed] the former employee to the state’s payroll”); Ramirez v. 

P.R. Fire Serv., 715 F.2d 694, 697 (1st Cir. 1983) (finding reclassification of an 

employee not barred by Eleventh Amendment). However, the Supreme Court has stated 

that “a suit may fail . . . if the relief requested cannot be granted by merely ordering the 

cessation of the conduct complained of but will require affirmative action by the 

sovereign,” suggesting that a claim for injunctive relief requiring that a plaintiff be newly

hired may be barred by the Eleventh Amendment. Larson v. Domestic & Foreign 

Commerce Corp., 337 U.S. 682, 691 n.11 (1949). As the Commonwealth agrees, the 

District Court should have considered this issue. 

In light of the District Court’s disposition of the Eleventh Amendment issue, it did 

not consider whether Smith stated a viable claim for prospective injunctive relief under 

the ADA and the ADEA. It is conceivable that the District Court could have found that. 
5

Indeed, some of Smith’s allegations potentially state a claim upon which relief could be 

granted. He alleges, for example, that DEP interviewers made several allegedly improper 

statements about his disability. Coupled with Smith’s qualifications, this could plausibly 

state an ADA claim. See Olson v Gen. Elec. Astrospace, 101 F.3d 947, 951 (3d Cir. 

1996) (listing the elements of a failure-to-hire claim under the ADA). Even if the District 

Court were to find Smith’s allegations deficient, we cannot say at this stage that they are 

so deficient that amending his complaint would be futile. He could, for instance, allege 

more facts about the person or persons who were hired for the positions he sought. See

id. But because the District Court overlooked Smith’s claims for injunctive relief, it did 

not consider the sufficiency of Smith’s pleadings, much less consider whether to afford 

him the opportunity to amend his complaint. See Grayson v. Mayview State Hosp., 293 

F.3d 103, 108 (3d Cir. 2002) (holding that even when a plaintiff does not seek leave to 

amend, if a complaint is vulnerable to 12(b)(6) dismissal, a District Court must permit a 

curative amendment, unless an amendment would be inequitable or futile). 

Accordingly, we will vacate the District Court’s decision dismissing Smith’s 

injunctive relief claims under the ADA and ADEA, and will remand for further 

consideration. We will affirm the District Court’s ruling in all other respects.