United States Court of Appeals

For the Eighth Circuit

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No. 12-2955

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Tim Lors, acting in his own capacity

lllllllllllllllllllll Plaintiff - Appellant

v.

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

lllllllllllllllllllll Defendants - Appellees

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 Appeal from United States District Court 

for the District of South Dakota - Pierre

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 Submitted: May 14, 2013

 Filed: August 8, 2013

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Before WOLLMAN, MURPHY, and SMITH, Circuit Judges.

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SMITH, Circuit Judge.

Tim Lors sued his employer, the South Dakota Bureau of Information and

Technology (BIT), and variousstate 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 1

appealed, and we issued a sua sponte order for supplemental briefing to address

whether sovereign immunity bars Lors's claims. Upon review, we hold thatsovereign

immunity bars Lors's claims for money damages against the defendants, and we

dismiss this appeal for lack of jurisdiction.

I. Background

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 coworkerslearned 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). 2

The HonorableRoberto A. Lange, United States DistrictJudge for the District 1

of South Dakota.

Our decision in Lors's appeal of his discrimination claim does not preclude us 2

from addressing the issue ofsovereign immunity under the ADA on this appeal of his

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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 itfound 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. Lorsthen applied for unemployment benefits, and his claimwas

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 3

defendants asserted various defenses and alleged that they were immune to suit under

the Eleventh Amendment and the doctrine of sovereign immunity. The defendants

retaliation claim. "Questions which merely lurk in the record, neither brought to the

attention of the court nor ruled upon, are not to be considered as having been so

decided as to constitute precedents." Webster v. Fall, 266 U.S. 507, 511 (1925).

Neither the Civil Rights Act of 1991 nor Title VII establish jurisdiction over 3

Lors's claims in this appeal. First, the Civil Rights Act of 1991 was enacted to amend

the ADA and Title VII. As such, it does not provide any basis for this court's

jurisdiction over Lors's claims that is independent of the ADA or Title VII.

Furthermore, although "Congress . . . abrogat[ed] States' sovereign immunity in Title

VII of the Civil Rights Act of 1964, 78 Stat. 255, 42 U.S.C. § 2000e-2(a), and [the

Supreme Court] sustained this abrogation in Fitzpatrick [v. Bitzer, 427 U.S. 455

(1976)]," Nevada Dep't of Human Res. v. Hibbs, 538 U.S. 721, 729–30 (2003), Title

VII only pertains to claims brought on the basis of an "individual's race, color,

religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Lors does not claim

retaliation on the basis of race, color, religion, sex, or national origin. Consequently,

this court also does not have jurisdiction under Title VII over Lors's claims.

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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 (1973). The court found that Lors established a prima facie case

ofretaliation, 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 nondiscriminatory 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.

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II. Discussion

Lors argues thatsovereign immunity does not bar his claims and that this court

has jurisdiction to adjudicate them. 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 (1890).

When Congress enacted the ADA in 1990, itsought to abrogate state sovereign

immunity to lawsuits alleging that a state violated its provisions. See 42 U.S.C.

§ 12202.

[W]e held in Alsbrook v. City of Maumelle, Ark., 184 F.3d 999, 1010

(8th Cir. 1999) (en banc), cert. dismissed, 529 U.S. 1001, 120 S. Ct.

1265, 146 L. Ed. 2d 215 (2000), that Title II of the ADA "was not a

proper exercise of Congress's power under Section 5 of the Fourteenth

Amendment" and therefore did not abrogate Eleventh Amendment

immunity.

Doe v. Nebraska, 345 F.3d 593, 600–01 (8th Cir. 2003). As we stated in Alsbrook,

it cannot be said that in applying Title II of the ADA to the states,

Congress has acted to enforce equal protection guarantees for the

disabled as they have been defined by the Supreme Court. We find

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therefore, that the extension of Title II of the ADA to the states was not

a proper exercise of Congress's power under Section 5 of the Fourteenth

Amendment. Consequently, there is no valid abrogation of Arkansas'

Eleventh Amendment immunity from private suit in federal court and

the district court lacked subject matter jurisdiction over the ADA claim.

Alsbrook, 184 F.3d at 1010. Subsequently, the Supreme Court overturned Congress's

attempted abrogation of sovereign immunity to claims for violations of Title I of the

ADA in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356

(2001). The plaintiffs in that case filed suit against various state defendants, seeking

money damages for a violation of Title I of the ADA. Id. at 362. On review, the

Supreme Court ruled that, although "Congress may subject nonconsenting States to

suit in federal court when it does so pursuant to a valid exercise of its § 5 power,"

"Congress' § 5 authority is appropriately exercised only in response to state

transgressions." Id. at 364, 368. The Court found that the "legislative record of the

ADA . . . simply fails to show that Congress did in fact identify a pattern of irrational

state discrimination in employment against the disabled." Id. at 368. Consequently,

the Court held that the Eleventh Amendment bars Title I ADA claims for money

damages brought by state employees in federal court. See Faibisch v. Univ. of Minn.,

304 F.3d 797, 800 (8th Cir. 2002) ("In . . . Garrett . . . , the Supreme Court ruled that

a state is immune from suit under Title I of the ADA unless it waives its sovereign

immunity."). 

Here, Lors asserts a retaliation claim under Title V of the ADA that is premised

on alleged prior discrimination under Title I of the ADA.

Neither the Supreme Court nor the Eighth Circuit has addressed whether

Title V is valid abrogation of state sovereign immunity. However, other

courts have concluded that the Supreme Court's holding in Garrett

"necessarily applies to claims brought under Title V [when] the claims

are predicated on alleged violations of Title I." Demshki v. Monteith,

255 F.3d 986, 988 (9th Cir. 2001); see also Reed v. College of the

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Ouachitas, No. 6:11CV6020, 2012 WL 1409772, *5 (April 23, 2012

W.D. Ark.) (noting that Supreme Court precedent supports a conclusion

that Congress may not abrogate the states' Eleventh Amendment

immunity from claims brought pursuant to Title V of the ADA); Morr

v. Missouri Dept. of Mental Health, No. 4:08CV359 RWS, 2009 WL

1140108, *4 (April 28, 2009 E.D. Mo.) (finding Title V claim for

damages barred by the Eleventh Amendment).

Tinzie v. Ark. Dep't of Workforce Servs., No. 4:11CV00683 SWW, 2012 WL

1739859, at *3 (E.D. Ark. May 16, 2012) (alteration in original). Shortly after the

Supreme Court issued Garrett, the Ninth Circuit issued its opinion in Demshki. The

plaintiff in Demshki wasfired from his new position with the California Senate Rules

Committee after voicing his concern that the Rules Committee violated disability law

in declining to hire a fellow campaign worker who spoke with a speech impediment.

255 F.3d at 987. The plaintiff filed suit, alleging retaliation, in violation of Title V of

the ADA. Id. at 988. The Ninth Circuit found that sovereign immunity protected the

Rules Committee from the plaintiff's ADA retaliation claim and directed the district

court to dismiss it. Id. at 989. The court stated:

There is nothing in the ADA's legislative findings demonstrating a

pattern of discrimination by states against employees who oppose

unlawful employment discrimination against the disabled. Absent a

history of such evil by the states, Congress may not abrogate the states'

Eleventh Amendment immunity from Title V claims. See Garrett, 121

S. Ct. at 967–68. 

Id. The Ninth Circuit recognized that the Supreme Court's holding in Garrett

"necessarily applies to claims brought under Title V of the ADA, at least where, as

here, the claims are predicated on alleged violations of Title I." Id.

Several district courts have agreed with the Ninth Circuit's reasoning in

Demshki, and relied on the decision to support the holding that a

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Title V claim was barred by the ADA. See, e.g., Tinzie v. Arkansas Dep't

of Workforce Servs., No. 4:11CV00683, 2012 WL 1739859, at *3 (E.D.

Ark. May 16, 2012); Reed v. Coll. of the Ouachitas, No. 6:11-CV-6020,

2012 WL 1409772, at * 5 (W.D. Ark. Apr. 23, 2012); Collazo-Rosado

v. Univ. of Puerto Rico, 775 F. Supp. 2d 376, 386–87 (D.P.R. 2011);

Morr, 2009 WL 1140108, at *4; but see Villanueva-Cruz v. Puerto Rico,

No. CIV. 10-2075, 2012 WL 1712691, at * 6 (D.P.R. May 15, 2012).

Merbach v. N. Dakota State Water Comm'n, No. 1:13-CV-030, 2013 WL 2252916,

at *3 (D.N.D. May 22, 2013). We also find Demshki persuasive, and we hold that

sovereign immunity shields the state defendants from Lors's claims for money

damages under Titles I and V of the ADA.

Lors argues that his suit can still survive summary judgment, despite the state's

sovereign immunity to claims for money damages, because his prayer for relief also

requested injunctive relief. Lors points to Garrett, which explains that "Title I of the

ADA still prescribes standards applicable to the States. Those standards can be

enforced . . . by private individuals in actions for injunctive relief under Ex parte

Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908)." 531 U.S. at 374 n.9. Lors

argues that reinstatement to his previous employment would be an appropriate

injunctive remedy. He cites Morr, in which the plaintiffsurvived summary judgment

on both of her Title I and Title IV ADA claims because her complaint contained a

pleading for reinstatement to her position—a form of prospective injunctive relief.4

2009 WL 1140108, at *6. However, unlike the complaint in Morr, Lors's complaint

does not contain a pleading for injunctive relief but only a generic prayer for

The complaint in Morr, under a section titled, "V. Damages and Remedies," 4

stated: "48. Plaintiff also seeks an injunction for reinstatement to her former position,

a declaratory ruling that Defendants' conduct was unlawful and discriminatory, and

such other and further relief as the Court deems necessary and proper under the

circumstances."

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unspecified injunctive relief. Furthermore, addressing a related point, Lors's 5

supplemental brief statesthat "[b]ecause the Tinzie plaintiff had not plead[ed] for any

prospective injunctive relief, the District Court directly applied the Garrett analysis

to the Title I ADA claim and found it barred." But the complaint in Tinzie contained

a more substantive prayer for injunctive relief than Lors's complaint. Thus, if the

6

Tinzie complaint failed to plead a claim for prospective injunctive relief, then, a

fortiori, Lors's complaint also fails to do so. "Although a pro se complaint is to be

liberally construed, it 'must contain specific facts supporting [a legally cognizable

claim].'" See Lally v. Crawford Cnty. Trust & Sav. Bank, Denison, IA, 863 F.2d 612,

Lors's prayer for relief states: 5

WHEREFORE, the Plaintiff requests that this Court grant the

following relief:

A. Award plaintiff compensatory damagesfor loss of income,

health benefits, emotional distress, and all other damages

available under the ADA and South Dakota law;

B. Award plaintiff punitive damages;

C. Award injunctive relief;

D. Award plaintiff attorney fees and other costs;

E. Such other and further relief that this Court may deem just

and appropriate.

(Emphasis added.)

The prayer for relief in Tinzie stated:

6

Plaintiff prays for back pay or reinstatement to her position as AAS

Writer II. Plaintiff seeks retroactive back pay, unpaid hourly wages,

unpaid holidays and reinstatement orfront pay caused by the Defendants

acts of discrimination, harassment and retaliation. In addition, the

Plaintiff seeks declaratory and injunctive relief from acts of

discrimination, harassment and retaliation within Defendants work

place.

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613 (8th Cir. 1988) (quoting Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985)).

Lors has not done so here. Consequently, we hold that Lors's complaint did not plead

a claim for prospective injunctive relief.

III. Conclusion

Because we hold that sovereign immunity shields the state defendants against

Lors's claims for money damages and that Lors did not plead a claim for prospective

injunctive relief, we have no jurisdiction to consider the merits of Lors's appeal.

Consequently, we dismiss this appeal and remand for further proceedings consistent

with this opinion.

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