Cisneros v. Wilson

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
SEP 11 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

REBECCA CISNEROS,

Plaintiff-Appellant,
v.

HEATHER WILSON, Cabinet Secretary;
CHRISTINE ROMERO, in her individual
capacity,

Defendants,

and No. 98-2215

CHILDREN, YOUTH AND FAMILIES
DEPARTMENT, as a branch of the State
of New Mexico,

Defendant-Appellee.

UNITED STATES OF AMERICA,

Intervenor.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW MEXICO
(D.C. No. CIV-96-1493 LH/DJS)

Donna L. Dagnall, Dagnall, Rames & Thomas, Albuquerque, New Mexico, for Plaintiff-
Appellant.

Paula I. Forney, State of New Mexico, Legal Bureau/RMD, Santa Fe, New Mexico, for
Defendant-Appellee.

Jessica Dunsay Silver, Seth M. Galanter, Attorneys, Department of Justice, Washington,
D.C., filed a brief for the Intervenor.

Before EBEL, HOLLOWAY, and KELLY, Circuit Judges.

HOLLOWAY, Circuit Judge.

Plaintiff Rebecca Cisneros (Plaintiff) brought this action against the New Mexico

Department of Children, Youth, and Families (Defendant Department).1 Plaintiff alleged

that Defendant Department (1) terminated her because of her disability (severe depression

and acute anxiety) in violation of Title I of the Americans with Disabilities Act (ADA),

42 U.S.C. §§ 12101-12213, and (2) retaliated against her in violation of Title VII of the

1964 Civil Rights Act (Title VII), as amended, 42 U.S.C. §§ 2000e to 2000e-15, because

she had filed charges of discrimination with the Equal Employment Opportunity

Commission (EEOC). The district court granted Defendants’ motion for summary

judgment on both claims, holding that Plaintiff could not prove: (1) that she was a

“qualified individual with a disability” as required by the ADA, or (2) that she was

retaliated against because she had filed charges with the EEOC as required by Title VII.

The Plaintiff appealed. Following argument there was an intervening Supreme

1
Plaintiff also brought claims against various employees of Defendant
Department. The district court dismissed those claims. See I App. at 31. Plaintiff has
not appealed that ruling.

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Court opinion that was handed down in January 2000, Kimel v. Florida Bd of Regents,

120 S. Ct. 631 (2000). We requested supplemental memoranda from the parties and from

the Government as an intervenor. These have been considered and we have determined

that the Eleventh Amendment, which was raised at oral argument, does not bar this suit

and that we have jurisdiction pursuant to 28 U.S.C. § 1291. For reasons that follow, we

affirm in part, reverse in part, and remand for further proceedings.

I

A

Because the district court granted Defendants’ motion for summary judgment, we

view the evidence in the light most favorable to Plaintiff. See McGarry v. Bd of County

Comm’rs, 175 F.3d 1193, 1198 (10th Cir. 1999) (“We view the evidence, and all

reasonable inferences drawn therefrom, in the light most favorable to the nonmoving

party.”).

From 1984 until 1995, Plaintiff worked for the Defendant Department (and various

other state agencies). In May 1995, Plaintiff was ordered to investigate another employee

for possible wrongdoing. During the four days of the investigation, Plaintiff was placed

under “extraordinary” emotional strain which caused Plaintiff to suffer a mental

breakdown on May 19, 1995. Before her breakdown, Plaintiff had no mental disability.

Instead, she was a “fully competent” employee who was “performing the duties of her

position.” After her breakdown, Plaintiff was unable to work. She sought treatment from

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a psychiatrist, Dr. Ray, who diagnosed her as suffering from severe depression and acute

anxiety.

To allow her sufficient time to recover, on June 21, 1995 Plaintiff filed a request

for leave pursuant to the Family and Medical Leave Act (FMLA). Defendant

Department granted that request and provided Plaintiff leave from June 26, 1995 until

September 15, 1995 (the maximum amount of leave authorized under that Act). See 29

U.S.C. § 2612(a)(1) (providing twelve weeks of leave under FMLA).

In early August 1995, Plaintiff requested forms so that she could participate in

Defendant Department’s voluntary annual leave transfer program. That program would

have allowed Plaintiff to remain on paid leave by obtaining donated leave from other

employees. Defendant Department refused to provide the forms directly to Plaintiff

because she had obtained counsel; Defendant Department, instead, told Plaintiff to have

her attorney contact it.2

Around September 12, 1995, Plaintiff wrote Defendant Department requesting that

it extend her leave until January 15, 1996. On September 29, 1995, Defendant

Department wrote back, informing Plaintiff that department policy allowed extended

leave without pay, but only under two circumstances: (1) if the department could assure

her a position of like status and pay at the same geographic location upon return, or (2) if

the department could not make such assurances, but the employee waived his or her right

2
Plaintiff did not receive the forms until September 30, 1995.

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to return to such a position. Defendant Department told Plaintiff that it could not assure

her return to an equivalent position and, thus, it could grant her request for leave only if

she waived her right to return to such a position. Defendant Department placed Plaintiff

on leave without pay until she submitted a completed request for extended leave.

On the same day that Defendant Department wrote back to Plaintiff, September 29,

1995, Plaintiff filed a charge with the EEOC alleging age and disability discrimination.3

Thereafter, on October 16, 1995, Plaintiff submitted a request for extended leave without

pay, as well as a request to participate in Defendant Department’s voluntary annual leave

transfer program. With the requests, Plaintiff included letters from Dr. Ray and another

of Plaintiff’s doctors, Dr. Maestas, stating that Plaintiff was unable to work. In the

requests Plaintiff refused to waive her right to return to an equivalent position. II App. at

182 (“I am unable to comply with your request to waive my rights to my position, pay and

location upon return to work.”).

On November 6, 1995, Defendant Department informed Plaintiff that it could not

grant her request for extended leave without pay because she had not waived her right to

return to an equivalent position. Defendant Department therefore placed Plaintiff on

“absent without leave” status. See id. at 188; I App. at 117 (employment policy)

(“Failure by the employee to report to work upon the expiration of approved

Family/Medical Leave will result in Absent Without Leave status, and may result in

3
Plaintiff is not pursuing a claim of age discrimination in this action.

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disciplinary action.”) (emphasis in original). Defendant Department, however, gave

Plaintiff five working days from receipt of the letter to reconsider her decision not to

waive that right. Because Plaintiff was absent without leave, Defendant Department

refused to consider her request to participate in the voluntary annual leave transfer

program.

On November 7, 1995, Plaintiff filed another charge with the EEOC, this time

alleging that Defendant Department had retaliated against her for filing the first charge.

Two days later, Plaintiff again informed Defendant Department that she would not waive

her right to return to an equivalent position. In response, Defendant Department told

Plaintiff that it was considering dismissing her from her position for being absent without

leave. After repeated exchanges of correspondence between Plaintiff and Defendant

Department, Defendant Department dismissed Plaintiff on December 23, 1995. On that

same day, Plaintiff filed another charge with the EEOC alleging that she had been

terminated in retaliation for filing her previous charges with the EEOC.

B

On October 29, 1996, Plaintiff filed this action alleging that Defendants (1)

terminated her because of her disability in violation of the ADA, and (2) retaliated against

her because she had filed charges of discrimination with the EEOC in violation of Title

VII. See I App. at 1-5. Thereafter, Defendants moved for summary judgment. See I

App. at 33. On July 22, 1998, the district court granted Defendants’ motion, holding that

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Plaintiff could not prove: (1) that she was a “qualified individual with a disability” as

required by the ADA, or (2) that she was retaliated against because she had filed charges

with the EEOC as required by Title VII. See II App. at 342-44. This timely appeal

ensued.

II

A

At oral argument, Defendants for the first time argued that the ADA does not

validly abrogate the States’ Eleventh Amendment immunity. Ordinarily the failure to

raise an issue in the district court and in the opening brief to this court would waive the

argument. See Smith v. Rogers Galvanizing Co., 128 F.3d 1380, 1385-86 (10th Cir.

1997) (“Generally, we will not consider an issue that was not raised and resolved in the

trial court.”), on rehearing, 148 F.3d 1196 (10th Cir. 1998). Claims of sovereign

immunity, however, present an exception to that general rule. See In re Talbot, 124 F.3d

1201, 1205 (10th Cir. 1997) (“Although the general rule in the Tenth Circuit is that the

court will not consider an issue raised for the first time on appeal, the United States' claim

of sovereign immunity presents an exception to the general rule.”); see also Mascheroni v.

Board of Regents of University of California, 28 F.3d 1554, 1559 (10th Cir. 1994) (“We

need not decide whether we are required or merely authorized to consider sua sponte the

Eleventh Amendment's applicability because, in either event, the law is clear that we may

consider whether the Eleventh Amendment bars Dr. Mascheroni's state law claims against

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the Board of Regents.”).

Supreme Court precedent and decisions of this court establish that deciding the

Eleventh Amendment issue is not beyond our jurisdictional grasp and that the issue

should be decided. In Ford Motor Co. v. Dep’t of Treasury, 323 U.S. 459, 466 (1945),

the Supreme Court considered the “conduct” of the Indiana Attorney General in

determining whether the state had waived its sovereign immunity from suit. The Attorney

General had appeared in both the federal district court and the court of appeals where he

defended the suit on the merits and without raising sovereign immunity as a defense.

Only upon reaching the Supreme Court did the state first advance the Eleventh

Amendment as a bar to federal court jurisdiction. Despite the fact that the Attorney

General had waited until this ultimate stage in the proceedings before raising sovereign

immunity as a defense, the Court nonetheless declared that “[t]his was in time.” Id. at

467. The Eleventh Amendment, the Court concluded, “declares a policy and sets forth an

explicit limitation on federal judicial power of such compelling force that this Court will

consider the issue arising under this Amendment in this case even though urged for the

first time in this Court.” Id. (emphasis added).

Ford Motor Co. remains binding. Pennhurst State School & Hospital v.

Halderman, 456 U.S. 89, 99 n.8 (1984) (“The limitation deprives federal courts of any

jurisdiction to entertain such claims, and thus may be raised at any point in a

proceeding.”); Patsy v. Bd. of Regents of the State of Florida, 457 U.S. 496, 515 n.19

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(1982) (noting that on remand the state may raise the Eleventh Amendment as a defense

even though in earlier proceedings it had relied solely on alternative grounds and had

“expressly requested that we . . . not pass on its potential Eleventh Amendment

immunity”); Edelman v. Jordan, 415 U.S. 651, 677-78 (1974).

The decisions of this court and others are squarely in accord with Ford Motor Co.

In Richins v. Industrial Construction, Inc., 502 F.2d 1051, 1056 (10th Cir. 1974), we

answered the question “[c]an the Eleventh Amendment be waived by the attorney general

of the state entering an appearance and litigating in the case . . .?” by concluding that “it

cannot be so waived . . . absent some extraordinarily effective waiver.” Id.(emphasis

added); see also De Leon Lopez v. Corporacion Insular de Seguros, 931 F.2d 116, 121

(1st Cir. 1991) (“[T]he salience of the provision overrides ordinary notions of procedural

default; an eleventh amendment defense may be raised for the first time even on appeal

to the Supreme Court.”); Aerojet-General Corp. v. Askew, 453 F.2d 819, 827-28 (5th Cir.

1971) (following Ford Motor Co. to hold that “defendants did not waive the right to claim

immunity from suit under the Eleventh Amendment to the Constitution by defending on

the merits in the district court” where the court of appeals on its own motion raised the

sovereign immunity issue for the first time at oral argument).

Here, the defendants filed a motion to dismiss that did not include the defense of

Eleventh Amendment immunity. We cannot conclude that in so doing the state’s conduct

was sufficiently extraordinary as to warrant a finding that the state effected a waiver of its

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sovereign immunity. See Garcia v. Bd. of Education of the Socorro Consolidated School

District, 777 F.2d 1403, 1405-06 (10th Cir. 1985) (per curiam) (holding that the state may

raise the Eleventh Amendment as a defense at oral argument on appeal although it had

raised sovereign immunity in its original answer but then later abandoned that defense);

see also MacDonald v. Bd. of Regents of the University of Michigan, 371 F.2d 818, 819

(6th Cir. 1967) (per curiam) (applying Ford Motor Co. to reject Appellant’s contention

that the state’s filing of an answer waives subsequent right to assert Eleventh Amendment

immunity).

Accordingly, we conclude that we should consider Defendants’ Eleventh

Amendment immunity argument.

B

As Defendants concede, this court’s recent decision in Martin v. Kansas, 190 F.3d

1120 (10th Cir. 1999), held that the ADA validly abrogated the states’ Eleventh

Amendment immunity. After Martin, and after the briefing and oral argument of this

appeal, the Supreme Court decided Kimel v. Florida Bd. of Regents, 120 S. Ct. 631

(2000), on January 11, 2000. There the Court held that the Age Discrimination in

Employment Act, 29 U.S. §§ 621-634, did not validly abrogate the States’ Eleventh

Amendment immunity. As noted we then requested further briefing to determine the

status of Martin in light of Kimel. We have considered those further briefs and turn now

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to our resolution of the Eleventh Amendment question.4

“In order to determine whether Congress has abrogated the States' sovereign

immunity, we ask two questions: first, whether Congress has unequivocally expressed its

intent to abrogate the immunity, and second, whether Congress has acted pursuant to a

valid exercise of power." Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55 (1996)

(citation, alteration, and internal quotation marks omitted). As Martin noted, there is no

doubt that Congress passed the first hurdle when it enacted the ADA which provided: “A

State shall not be immune under the eleventh amendment to the Constitution of the

United States from an action in Federal or State court of competent jurisdiction for a

violation of this chapter.” 42 U.S.C. § 12202; Martin, 190 F.3d at 1126-27; see also H.

Rep. No. 101-485(IV), at 70, reprinted in 1990 U.S.C.C.A.N. 512, 559 (“Consistent with

the requirements set forth in Atascadero State Hospital v. Scanlon, 473 U.S.234 (1985),

this section specifies that a State shall not be immune under the 11th Amendment. . . .”).

The dispositive issue here is whether Congress “acted pursuant to a valid exercise

of power” when it enacted the ADA. Congress purported to pass the ADA pursuant to

two Constitutional provisions: Article I, Section 8 (the Commerce Clause) and Section 5

4
We note that the Supreme Court has granted certiorari in a case involving whether the
ADA validly abrogates the states’ Eleventh Amendment immunity. See University of Alabama
at Birmingham Bd. of Trustees v. Garrett, 120 S. Ct. 1669 (2000). Plaintiff and the United States
urge us to stay this case pending the Court’s decision in Garrett.
The Court granted certiorari on two earlier occasions to resolve the same question, only to
have the cases settle. We previously stayed this case pending the decisions in those cases. Given
the uncertainty whether the Court will actually decide the question this time in a manner
dispositive here, we decline to stay this case again.

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of the Fourteenth Amendment. See 42 U.S.C. § 12101(b)(4) (“It is the purpose of this

[Act] . . . to invoke the sweep of congressional authority, including the power to enforce

the fourteenth amendment and to regulate commerce . . . .”). In Seminole Tribe, 517 U.S.

at 72, the Supreme Court held that Congress cannot validly abrogate the state’s Eleventh

Amendment immunity under its Article I powers. Therefore, Congress could validly

abrogate the States’ Eleventh Amendment immunity, if at all, only pursuant to Section 5

of the Fourteenth Amendment.

C

The Supreme Court’s current test for congressional abrogation of the States’

immunity under Section 5 of the Fourteenth Amendment originated in City of Boerne v.

Flores, 521 U.S. 507 (1997). There, a municipality challenged the constitutionality of the

Religious Freedom Restoration Act (RFRA). Congress had passed RFRA in response to

the Court’s decision in Employment Div., Dept. of Human Resources of Oregon v. Smith,

494 U.S. 872 (1990), which had held that a neutral, generally applicable law ordinarily

would not violate the Free Exercise Clause. By enacting RFRA, Congress sought “to

restore the compelling interest test . . . and to guarantee its application in all cases where

free exercise of religion is substantially burdened.” 42 U.S.C. § 2000bb(b).

In City of Boerne, the Court held that Congress in RFRA had exceeded its power

under Section 5 of the Fourteenth Amendment:5

5
Section 5 of the Fourteenth Amendment provides that “[t]he Congress shall have the
power to enforce, by appropriate legislation, the provisions of this article.”

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 Congress’ power under § 5 . . . extends only to “enforc[ing]” the
provisions of the Fourteenth Amendment. The Court has described this
power as “remedial.” The design of the Amendment and the text of § 5 are
inconsistent with the suggestion that Congress has the power to decree the
substance of the Fourteenth Amendment’s restrictions on the States. . . .

City of Boerne, 521 U.S. at 519 (alterations in original). To protect against impermissible

attempts by Congress to determine the substance of the Fourteenth Amendment, the Court

adopted a congruence and proportionality test: “There must be a congruence and

proportionality between the injury to be prevented or remedied and the means adopted to

that end.” Id. at 520.

Under this congruence and proportionality test, “[t]he appropriateness of the

remedial measure must be considered in light of the evil presented.” Id. at 530. “Strong

measures appropriate to one harm may be an unwarranted response to another, lesser

one.” Id. The Court therefore looked first to the legislative history of RFRA to determine

the extent of the “evil.” According to the Court, “RFRA’s legislative record lacks

examples of modern instances of generally applicable laws passed because of religious

bigotry.” Id. at 530. Thus, the legislative history did not demonstrate a pattern or practice

of unconstitutional action and therefore it did not demonstrate a particularly pernicious

“evil.” See, e.g., id.

“Regardless of the state of the legislative record,” the Court held that “RFRA

cannot be considered remedial, preventive legislation, if those terms are to have any

meaning”:

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 Remedial legislation under § 5 should be adapted to the mischief and
wrong which the Fourteenth Amendment was intended to protect against.

RFRA is not so confined. Sweeping coverage ensures its intrusion at
every level of government, displacing laws and prohibiting official actions
of almost every description and regardless of subject matter.

Id. at 532. RFRA failed the “congruence and proportionality” test:

The stringent test RFRA demands of state laws reflects a lack of
proportionality or congruence between the means adopted and the
legitimate end to be achieved. If an objector can show a substantial burden
on his free exercise, the State must demonstrate a compelling governmental
interest and show that the law is the least restrictive means of furthering its
interest.

Id. at 533-35. Accordingly, the Court held that RFRA was not a valid exercise of

Congress’s power under Section 5. See id. at 535.

The Court applied the congruence and proportionality test again two terms later in

Florida Prepaid Postsecondary Education Expense Bd. v. College Savings Bank, 119 S.

Ct. 2199 (1999). There the Court addressed whether the Patent Remedy Act validly

abrogated the states’ Eleventh Amendment immunity. Following City of Boerne, the

Court held that it “must first identify the Fourteenth Amendment ‘evil’ or ‘wrong’ that

Congress intended to remedy. . . .” Florida Prepaid, 119 S. Ct. at 2207. With the Patent

Remedy Act Congress sought to remedy the States’ infringement of patents and their use

of sovereign immunity to deny the patent holders compensation for the infringement. See

id. “In enacting the Patent Remedy Act, however, Congress identified no pattern of

patent infringement by the States, let alone a pattern of constitutional violations.” Id. The

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Court said:

The legislative record . . . suggests that the Patent Remedy Act does
not respond to a history of “widespread and persisting deprivation of
constitutional rights” of the sort Congress has faced in enacting proper
prophylactic § 5 legislation. City of Boerne, 521 U.S. at 526. Instead,
Congress appears to have enacted this legislation in response to a handful of
instances of state patent infringement that do not necessarily violate the
Constitution. Though the lack of support in the legislative record is not
determinative, see id. at 531, identifying the targeted constitutional wrong
or evil is still a critical part of our § 5 calculus because “[s]trong measures
appropriate to address one harm may be an unwarranted response to
another, lesser one.” id. at 530. Here, the record at best offers scant
support for Congress’ conclusion that States were depriving patent owners
of property without due process of law by pleading sovereign immunity in
federal-court patent actions.

Id. at 2210 (alteration in original). Because there was little evidence of constitutional

violations by the states, the Court held that the provisions of the Patent Remedy Act were

“out of proportion to a supposed remedial or preventative object.” Florida Prepaid, 119

S. Ct. at 2210.

After City of Boerne,6 a number of circuits, including our circuit, applied the

congruence and proportionality test to the ADA.7 See Garrett v. University of Alabama at

6
Before Boerne, the Seventh Circuit had held that Congress validly abrogated the states’
Eleventh Amendment immunity when it enacted the ADA. See Crawford v. Indiana Dep’t of
Corrections, 115 F.3d 481, 487 (7th Cir. 1997).
7
We note that the Supreme Court applied the ADA to the states in Pennsylvania Dept. of
Corrections v. Yeskey, 524 U.S. 206 (1998). The Court, however, reserved the question whether
the ADA exceeded Congress’ power under Section 5 of the Fourteenth Amendment. See id. at
212 (“We do not address another issue presented by petitioners: whether application of the ADA
to state prisons is a constitutional exercise of Congress’s power under . . . § 5 of the Fourteenth
Amendment.”).

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Birmingham Bd. of Trustees, 193 F.3d 1214, 1218 (11th Cir. 1999), cert. granted, 120 S.

Ct. 1669 (2000); Dare v. California, 191 F.3d 1167, 1174 (9th Cir. 1999), petition for

cert. filed, 68 U.S.L.W. 3566 (U.S. 2000); Martin, 190 F.3d at 1127-28; Mueller v.

Costello, 187 F.3d 298 (2d Cir. 1999); Kimel v. Florida Bd. of Regents, 139 F.3d 1426,

1433 (11th Cir. 1998), aff’d on other grounds, 120 S. Ct. 631 (Jan. 11, 2000);8 Coolbaugh

v. Louisiana, 136 F.3d 430, 438 (5th Cir), cert. denied, 119 S. Ct. 58 (1998); Clark v.

California, 123 F.3d 1267, 1270 (9th Cir. 1997), cert. denied sub. nom. Wilson v.

Armstrong, 118 S. Ct. 2340 (1998). Most circuits, including ours, held that the ADA

validly abrogated the States’ Eleventh Amendment immunity.9 The circuits essentially

followed the same approach that this court used in Martin.

In Martin we relied on three principle reasons to distinguish the ADA from RFRA.

8
The Eleventh Circuit in Kimel held that Congress had validly abrogated the States’
Eleventh Amendment immunity when it passed the ADA, but not when it passed the ADEA.
The parties filed separate petitions for certiorari involving the statutes. The Supreme Court
granted the petition for certiorari on the ADEA claim, see 525 U.S. 1121 (1999), and affirmed
the Eleventh Circuit, albeit on a different basis, see 120 S. Ct. at 631, 640. The Supreme Court
also granted certiorari to resolve the ADA question, see Florida Dept of Corrections v. Dickson,
120 S. Ct. 976 (2000), but dismissed the writ after the parties settled that case, 120 S. Ct. 1236.
9
The Eighth Circuit held that the ADA did not validly abrogate the states’ Eleventh
Amendment immunity. See Alsbrook v. City of Maumelle, 184 F.3d 999, 1010 (8th Cir. 1999)
(en banc), cert. granted in part, 120 S. Ct. 1265, cert. dismissed, 120 S. Ct. 1265 (2000); Debose
v. Nebraska, 186 F.3d 1087, 1088 (8th Cir.), republished at 207 F.3d 1020 (8th Cir.), petition for
cert. filed, 68 U.S.L.W. 3391 (Dec. 1, 1999). Panels of the Fourth Circuit have split on the
question. Compare Amos v. Maryland Dep’t of Public Safety and Correction Services, 178 F.3d
212, 220 (4th Cir. 1999) (holding that the ADA validly abrogated the States’ Eleventh
Amendment immunity), vacated on other grounds, 205 F.3d 687 (4th Cir. 2000), with Brown v.
North Carolina Division of Motor Vehicles, 166 F.3d 698, 707-08 (4th Cir. 1999) (holding that
the ADA did not validly abrogate the States’ Eleventh Amendment immunity).

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We first held the ADA was designed to remedy a strong “evil” or “wrong.” See Martin,

190 F.3d at 1127-28. The Supreme Court in City of Clebourne v. Clebourne Living

Center, 473 U.S. 432 (1985), had held that the Equal Protection Clause prohibited

arbitrary discrimination against the disabled. Martin, 190 F.3d at 1128. “Thus, under

Clebourne, the disabled are protected by Fourteenth Amendment, and Congress is entitled

to enforce this protection against the states.” Id. Moreover, “Congress, when it enacted

the ADA, made numerous findings of fact regarding the pervasiveness of discrimination

against disabled persons.” Id. at 1127.

In light of this strong “evil,” the ADA was “congruent and proportional.” See id.

at 1128. We held that, “[t]he Act only prohibits discrimination against ‘qualified

individuals,’ and it requires only ‘reasonable accommodations’ that do not impose an

‘undue burden’ on the employer.” Id. at 1128. Martin therefore concluded that:

The ADA, unlike RFRA, is not attempting to impose a strict
scrutiny standard on all state laws or actions in the absence of evidence of
discrimination.... Rather, the ADA seeks to impose a scheme that will
adequately prevent or remedy a well-documented problem of discrimination
without unduly burdening the state prison system. It subjects some laws
and official actions to a "reasonable accommodation" requirement only to
the point that the accommodation is not unduly burdensome. Such a
scheme, unlike RFRA, does not redefine or expand [disabled persons']
constitutional protections, but simply proportionally acts to remedy and
prevent documented constitutional wrongs.

Id. (citation and internal quotation marks omitted) (alteration in original).

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 D

After our decision in Martin, the Supreme Court in January 2000 analyzed whether

the ADEA validly abrogated the States’ Eleventh Amendment immunity in Kimel, 120 S.

Ct. 631, 645-50 (2000). As in City of Boerne and Florida Prepaid, the Court again

applied the congruence and proportionality test. Unlike City of Boerne and Florida

Prepaid, however, in Kimel, 120 S. Ct. at 645, the Court focused its attention on the Equal

Protection Clause. The Court first noted that it had, on three previous occasions, held that

age discrimination claims did not establish violations of the Equal Protection Clause.

See id. (citing Gregory v. Ashcroft, 501 U.S. 452 (1991); Vance v. Bradley, 440 U.S. 93

(1979); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) (per curiam)).

More importantly, the Court noted that age discrimination victims were not a discrete

class and therefore claims of such discrimination were subject only to rational basis

review. Kimel, 120 S. Ct at 645-46. The Court highlighted the importance of the nature

of scrutiny to be applied by the courts:

States may discriminate on the basis of age without offending the
Fourteenth Amendment if the age classification in question is rationally
related to a legitimate state interest. The rationality commanded by the
Equal Protection Clause does not require States to match age distinctions
and the legitimate interests they serve with razorlike precision. . . .In
contrast, when a State discriminates on the basis of race or gender, we
require a tighter fit between the discriminatory means and the legitimate
ends they serve. Under the Fourteenth Amendment, a State may rely on
age as a proxy for other qualities, abilities, or characteristics that are
relevant to the State's legitimate interests. The Constitution does not
preclude reliance on such generalizations.

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Id. at 646 (citations omitted) (alterations in original).

The Court then considered the ADEA “against this backdrop” of the Equal

Protection Clause and held that the Act was “so out of proportion to a supposed remedial

or preventive object that it cannot be understood as responsive to, or designed to prevent,

unconstitutional behavior.” Id. at 647 (quoting City of Boerne, 521 U.S. at 532).

Specifically, the ADEA “makes unlawful, in the employment context, all discriminat[ion]

against any individual . . . because of such individual’s age.” See id. (quoting 29 U.S.C. §

623 (a)(1)) (alterations in original). Accordingly, “[t]he Act, through its broad restriction

on the use of age as a discriminating factor, prohibits substantially more state employment

decisions and practices than would likely be held unconstitutional under the applicable

equal protection, rational basis standard.” Kimel, 120 S. Ct. at 647.

The Court said the ADEA’s exceptions did not solve this problem. Section 623

(f)(1) does allow employers to rely on age when it “is a bona fide occupational

qualification [BFOQ] reasonably necessary to the normal operation of the particular

business.” Kime1, 120 S. Ct. at 647. This defense, however, was “a far cry from the

rational basis standard we apply to age discrimination under the Equal Protection Clause.”

Id. Moreover, “[u]nder the ADEA, even with its BFOQ defense, the State’s use of age is

prima facie unlawful.” Id. Application of the ADEA thus starts with a presumption in

favor of requiring the employer to make an individualized determination.

The Court next noted that the ADEA (§ 623 (f)(1)) allows employers to engage in

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behavior otherwise prohibited by the Act “where the differentiation is based on

reasonable factors other than age.” Kimel, 120 S. Ct. at 648. “Under the Constitution, in

contrast, States may rely on age as a proxy for other characteristics.” Id. This defense

therefore “merely confirms that Congress, through the ADEA, has effectively elevated the

standard for analyzing age discrimination to heightened scrutiny.” Id.

The Court concluded that “the ADEA prohibits very little conduct likely to be held

unconstitutional.” Id. The Court said that this fact,

while significant, does not alone provide the answer to our § 5 inquiry.
Difficult and intractable problems often require powerful remedies, and we
have never held that § 5 precludes Congress from enacting reasonably
prophylactic legislation. Our task is to determine whether the ADEA is in
fact just such an appropriate remedy or, instead, merely an attempt to
substantively redefine the State’s legal obligations with respect to age
discrimination. One means by which we have made such a determination in
the past is by examining the legislative record containing the reasons for
Congress’ action. . . “The appropriateness of remedial measures must be
considered in light of the evil presented.” “Strong measures appropriate to
one harm may be an unwarranted response to another, lesser one.”

Kimel, 120 S. Ct. at 649 (quoting City of Boerne, 521 U.S. at 530).

The Court examined the legislative record and concluded that “Congress never

identified any pattern of age discrimination by the States, much less any discrimination

whatsoever that rose to the level of constitutional violations.” Id. at 648-49. At best, the

evidence of discrimination by the States consisted of “isolated sentences clipped from

floor debates and legislative reports,” which was plainly insufficient. See id. at 649.

Finally, although the Court accepted the fact that Congress “found substantial age

- 20 -
discrimination in the private sector, the Court held that this evidence was “beside the

point,” since “Congress made no such findings with respect to the States.” Kimel, 120 S.

Ct. at 649. “A review of the ADEA’s legislative record as a whole, then, reveals that

Congress had virtually no reason to believe that state and local governments were

unconstitutionally discriminating against their employees on the basis of age. . . .

Congress’ failure to uncover any significant pattern of unconstitutional discrimination

here confirms that Congress had no reason to believe that broad prophylactic legislation

was necessary in this field.” Id. at 649-50.

Accordingly the Court in Kimel held that the ADEA did not validly abrogate the

States’ Eleventh Amendment immunity.

E

The Second, Third, and Seventh Circuits have now analyzed whether Kimel

required them to revise their previous rulings concerning the ADA and the Eleventh

Amendment. These courts have reached contrary conclusions. Compare Lavia v.

Pennsylvania Dep’t of Corrections, 2000 WL 1121553 (3d Cir. 2000); Erickson v. Bd. of

Governors of State Colleges and Universities for Northeastern Illinois Univ., 207 F.3d

945, 948 (7th Cir. 2000) (“The Supreme Court’s opinion in Kimel calls all of these

decisions into question, and we think it best to analyze the subject afresh rather than to

rehash pre-Kimel conclusions in and out of this circuit.”), and Cooley v. Mississippi Dept.

of Transp., 96 F. Supp.2d 565, 568 (S.D. Miss. 2000) (“Despite its contrary holding prior

- 21 -
to Kimel, this Court predicts that, if faced with this issue again, the Fifth Circuit would

follow reasoning similar to that of the Seventh Circuit and hold that states are immune

from damages suits under the ADA.”), with Kilcullen v. New York State Dep’t of Labor,

205 F.3d 77, 81 (2d Cir. 2000) (“[T]his court has already determined that [the ADA is

legitimate remedial legislation]. New York’s protestations notwithstanding, that decision

is controlling here.”) (citation omitted). Judge Kimball, one of our Tenth Circuit District

Judges has recently made a scholarly survey of this law and has held the ADA’s

abrogation of state Eleventh Amendment immunity valid, following our Martin holding.

See Davis v. Utah State Tax Comm’n, 96 F. Supp.2d 1271, 1279 (D. Utah 2000) (“The

Kimel Court merely applied the previous tests that it had announced in Seminole Tribe

and refined in City of Boerne. Because the Tenth Circuit applied the very test that Kimel

requires, Martin is still good law that must be followed by this court.”).

For reasons we will explain, we are persuaded by the views in Kilcullen, in the

dissent of Judge Wood in Erickson, and in Judge Kimball’s Davis opinion. We feel that

Martin’s conclusion on the validity of the ADA’s abrogation of Eleventh Amendment

immunity remains sound and need not be altered because of the analysis in Kimel. Our

reasons follow.

The Second Circuit’s opinion concerned an epilepsy victim with a learning

disability. Kilcullen, 205 F.3d at 77. His suits under the ADA, the Rehabilitation Act and

New York law challenged his discharge from the New York Department of

- 22 -
Transportation under both the federal and state laws and alleged that application forms of

the Department violated the ADA, Section 504 of the Rehabilitation Act, and New York

law also by posing questions about his disability. His suit was dismissed on the ground

that the Eleventh Amendment bars federal courts from considering claims against the

States under the provisions in question. The Kilcullen opinion dealt with an appeal of

one of Kilcullen’s suits.

The Second Circuit rejected the State’s analysis and held that state agencies are not

immune from suit in federal court to enforce the rights guaranteed in Section 504 of the

Rehabilitation Act. The Rehabilitation Act of 1973 and the 1992 ADA, while not

absolutely congruent in their other requirements, do impose identical obligations on

employers. Kilcullen, 205 F.3d at 79, n.1. Kilcullen noted the two part test set forth in

Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55 (1996), for determining whether an

act of Congress validly abrogates States’ sovereign immunity: (1) Congress must

unequivocally express its intent to abrogate the immunity; and (2) Congress must act

pursuant to a constitutional provision granting it the power to abrogate. Kilcullen, 205

F.3d at 79.

As to the second prong set out above, Kilcullen said that recent Supreme Court

precedent has clarified that Congress may not abrogate State sovereign immunity

pursuant to its Article I powers, but it may do so pursuant to Section 5 of the Fourteenth

Amendment and its enforcement power there granted. New York conceded the

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unequivocal expression of Congress’ intent to abrogate State sovereign immunity, but

argued that the second Seminole Tribe requirement was not met since Congresss was not

acting pursuant to a valid exercise of its Section 5 enforcement powers when it adopted

the Rehabilitation Act.

More specifically New York later argued that Congress’ abrogation was invalid

because it had not yet developed a sufficient legislative record demonstrating the

Rehabilitation Act was appropriate to enforce the Fourteenth Amendment. Kilcullen, 205

F.3d at 80. The Second Circuit rejected New York’s objection to consideration of the

subsequently accumulated legislative record when it assessed whether the Rehabilitation

Act constituted remedial legislation. Id. Courts “have always been free to consider

evidence beyond that which is contained in the legislative record.” Id. See Turner

Broadcasting Systems v. FCC, 520 U.S. 180, 200 (1997). And the Second Circuit, noting

the statement in Florida Prepaid, 119 S. Ct. at 2210, that “lack of support in the legislative

record is not determinative,” concluded that the Supreme Court “has never established a

procedural requirement that Congress document in detail its reasons for adopting the

statute.” Kilcullen, 205 F.3d at 80.

“The ultimate question remains not whether Congress created a sufficient

legislative record, but rather whether, given all of the information before the Court, it

appears that the statute in question can appropriately be characterized as legitimate

remedial legislation.” Id. Kilcullen concluded that examining “the legislative record

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Congress compiled in its hearings on the ADA, this court has already determined that the

substance of these twin statutes [the ADA and the Rehabilitation Act] can be so

characterized.” (citing Muller v. Costello, 187 F.3d 298, 308-11 (2d Cir. 1999)). Kilcullen

concluded that in light of identical provisions in the ADA and the Rehabilitation Act, a

single question was presented for review and held that Congress “validly abrogated the

States’ immunity from suit under both the ADA and Section 504 of the Rehabilitation

Act.” Kilcullen, 205 F.3d at 82.

In Erickson v. Bd. of Governors, 207 F.3d 945 (7th Cir. 2000), the Seventh Circuit

held, inter alia, that Title I of the ADA does not “enforce” the Fourteenth Amendment and

therefore the Eleventh Amendment bars suit in the federal courts against the States and

arms of the States. The majority opinion in Erickson noted that the legislative findings

concerning the ADA “contain not one word about state governments,” id. at 951, and that

legislative statements, as in Kimel, consist “almost entirely of isolated sentences clipped

from floor debates and legislative reports.” (quoting Kimel, 120 S. Ct. at 649). The

Seventh Circuit majority therefore concluded that the ADA does not enforce the Fourteenth

Amendment and that private litigation against the States is blocked in the federal courts.

Erickson, 207 F.3d at 952. Judge Wood dissented, finding critical distinctions between the

ADEA and the ADA. For cogent reasons which she articulates, Judge Wood concludes

that the ADA was a permissible exercise of Congress’s Section 5 power with ample support

in the legislative record. It is convenient to detail the reasoning of Judge Wood later after

- 25 -
we discuss the Third Circuit’s Lavia opinion.

In Lavia, a Commonwealth of Pennsylvania Corrections Department employee sued

alleging harassment and termination of his employment. Lavia had suffered from a seizure

and had been diagnosed with CNS Vasculitis of the brain and Lavia alleged his condition

rendered him “disabled.” He sought reinstatement, damages and other relief under the

ADA, the Vocational Rehabilitation Act and the Pennsylvania Human Relations Act. The

latter claim was dismissed by the District Court under the Eleventh Amendment but not the

federal claims. The Commonwealth appealed, challenging Lavia’s claim under the ADA.

The Third Circuit focused on the validity of Congressional abrogation of the

Eleventh Amendment immunity of the Commonwealth. The court held the first

requirement for abrogation was met by the express statement of the ADA on abrogation. It

was held, however, that the Congress did not act in doing so within the proper exercise of

its power. Article I powers, including those under the Commerce Clause, do not support

abrogation. Section 5 power to enforce the Fourteenth Amendment was held unavailing

also. The Lavia opinion said that since Congress is only authorized to exercise its Section 5

power to remedy constitutional violations by the States, and not by private members of

society and the community, and because there is no evidence of State violations, Congress

did not validly abrogate the States’ Eleventh Amendment immunity. 2000 WL 1121553,

*9.

Lavia dismisses Judge Wood’s views as merely “forceful and interesting” but says

- 26 -
they do not call for a different result than Lavia’s invalidation of the ADA abrogation

provision. 2000 WL 1121553, *10. We disagree.

We are persuaded by the dissent of Judge Wood in Erickson, id. at 952-61, and not

by the Erickson majority opinion or by Lavia. Judge Wood considered and discussed

Kimel at length, 207 F.3d at 954 et seq., concluding that “Congress legitimately used its

power under section 5 of the Fourteenth Amendment when it made the ADA applicable to

the states.” Id. at 954. She noted the requirement from Florida Prepaid, 119 S. Ct. at 2205,

that there “must be a congruence and proportionality between the injury to be prevented or

remedied and the means adopted to that end.” (quoting from City of Boerne, 521 U.S. at

519-20). Judge Wood pointed out that the Erickson majority opinion “ignores the express

holding of Kimel that ‘we have never held that section 5 precludes Congress from enacting

reasonably prophylactic legislation.’ 120 S. Ct. at 648.” 207 F.3d at 955.

Judge Wood’s dissent found critical distinctions between the ADEA (which Kimel

held to have invalidly attempted to abrogate Eleventh Amendment immunity) and the

ADA, which Judge Wood found valid in its abrogation of the immunity. She said Kimel

observed that older persons have not been subjected to a history of purposeful unequal

treatment. Id. at 956. Judge Wood pointed out that, in contrast, Congress found in the

ADA that disabled persons have been subjected to a history of purposeful unequal

treatment in critical areas such as employment, transportation, communication, recreation,

institutionalization, health services, voting, and access to public services. Id. at 956. Thus

- 27 -
in the ADA’s statement of “Findings,” Congress provided a litany of areas in which it

found that the disabled suffer discrimination.10 For purposes of deciding whether Congress

validly abrogated state sovereign immunity in enacting the ADA, Congress’s “Findings”

are especially significant for the extent to which several of its enumerated areas are largely,

or even entirely, the domain of the states. For instance, Congress found that discrimination

exists in “education.” As Judge Wood noted in her dissent in Erickson, “Education in this

country is overwhelmingly an enterprise of state and local government,” and that a full

ninety percent of elementary and secondary school students attend public schools.

Erickson, 207 F.3d at 957 & n.3 (Wood, J., dissenting). Given the clear public nature of

education, we agree with Judge Wood that the inclusion of “education” among the areas in

which Congress found discrimination against the disabled demonstrates a congressional

finding of state discrimination.

The inclusion of “education” is not unique in this regard. As Judge Wood’s dissent

demonstrates, Congress’s enumeration of “transportation” and “health services,” both of

which entail heavy state and local government involvement, likewise represents a

congressional finding that the states themselves engage in discrimination against the

disabled. Id. at 957-58 & nn. 4-5 (Wood, J., dissenting).

Congress’s list of areas of discrimination is not limited to those largely or

10
42 U.S.C. § 12101 states in pertinent part: “The Congress finds . . discrimination against
individuals with disabilities persists in such critical areas as employment, housing, public
accommodations, education, transportation, communication, recreation, institutionalization,
health services, voting, and access to public services. . .”

- 28 -
predominantly controlled by the states. The litany of areas also includes those that

unambiguously are under the exclusive domain of the states. In this regard we note

Congress’s finding that the disabled are subject to discrimination in “voting.” As the

conduct of elections is within the exclusive purview of the states, Congress’s decision to

include “voting” again demonstrates a congressional finding of discrimination by the

States.

We conclude that contrary to Lavia’s holding that the statute lacks a legislative

history or congressional findings of discrimination against the disabled by the states,

Congress did in fact make findings of state discrimination. Having delineated areas

infected by state discrimination against the disabled, Congress properly sought to remedy

and prevent the recurrence of such discrimination. See 42 U.S.C. § 12101(a) (4) (“[U]nlike

individuals who have experienced discrimination on the basis of race, color, sex, national

origin, religion, or age, individuals who have experienced discrimination on the basis of

disability often had no legal recourse to redress such discrimination. . .”). To do so,

Congress validly abrogated the states’ sovereign immunity by invoking its power under

Section 5 in a manner proportionate and congruent to the violations Congress had

identified. Kimel, 120 S. Ct. 631 (2000).

The dissent of Judge Wood concludes that these and other reasons demonstrate that

the ADA is a permissible exercise of Congress’s section 5 power, and that the ADA and the

ADEA “fare quite differently under the proportionality analysis required by Boerne and

- 29 -
Kimel.” Erickson, 207 F.3d at 956 (Wood, J., dissenting). The dissent reasons that it was

the broad sweep of the ADEA that caused the Supreme Court to find it was not a

proportional response to the problem of age discrimination (the ADEA prohibiting all

employment discrimination on the basis of age against persons over 40, the protected class,

with only limited tempering of the restriction where an employer shows a substantial basis

for believing all or nearly all employees over a given age lack qualifications or because

individual testing is highly impractical). Id. at 957. In contrast, Judge Wood’s dissent

points to the ADA’s “more nuanced approach to the problem of disability discrimination.”

Id. An employer making distinctions on the basis of disability need only show that

reasonable steps of accommodation will not work. See 42 U.S.C. §§ 12111, 12113. This

leads to the dissent’s conclusion that the ADA meets the first part of Kimel’s analysis --

proportionality. 207 F.3d 955-57.

The dissent then considers the second Kimel question -- whether the legislative

record reveals either a pattern of age discrimination committed by the states or “any

discrimination whatsoever that [rises] to the level of constitutional violation. ” Id. at 957.

The legislative record is found to be admittedly sparse on findings pertaining specifically to

state behavior. The dissent focuses, however, on the fact that

. . .the House Report notes that “inconsistent treatment of people with
disabilities by different state or local government agencies is both inequitable
and illogical.” H. R. Rep. No. 101-485 (II), U. S. Code Cong. & Admin.
News at 319. More importantly, the express congressional findings with
respect to pervasive discrimination address many areas that are controlled to a
significant degree by state and local governments. For example, Congress

- 30 -
 identified discrimination in education as a particular problem.

Education in this country is overwhelmingly an enterprise of state and
local government. Another sector singled out in the statute was health
services, in which state and local governments also play a powerful role. The
story is similar for transportation, which is also mentioned in § 12101(3).
Congress’s specific attention to sectors with such a substantial state and local
governmental presence indicates that it knew that government action at the
state level was an important part of the problem it was addressing.

Id. at 957-58 (emphasis added). Moreover the dissent points out that other evidence the

Kimel Court found lacking for the ADEA -- “a record of discrimination that reveals

constitutional violations -- is present in abundance for the ADA.” Id. at 958. The findings

cited by the dissent are reproduced in the Appendix to this opinion.

As noted, in Davis v. Utah State Tax Commission, 96 F. Supp. 2d 1271 (D. Utah

2000), Judge Kimball thoroughly analyzed the Eleventh Amendment issue. He agreed, as

we do, with the dissent of Judge Wood in Erickson and restated her analysis at length. We

need not repeat his recitation of her views, and merely note our agreement with the analysis

laid out in the Davis opinion on the Eleventh Amendment issue. We express no view on

other issues which the Davis opinion deals with.

In sum, from our consideration of Kimel and the subsequent opinions we have

analyzed above, Kilcullen, Judge Wood’s dissent in Erickson, and Davis, we are convinced

that this court’s opinion in Martin remains sound and that no subsequent Supreme Court or

other precedent calls for us to revise the conclusions expressed therein. Accordingly, we

hold that the ADA validly abrogated Eleventh Amendment immunity so that Plaintiff’s

- 31 -
ADA claims against the defendants are not barred by the immunity.

III

We review de novo the district court's grant of summary judgment to determine

whether it correctly applied the law and whether, viewing the evidence in the light most

favorable to the non-moving party, there are no genuine issues of material fact. See United

States ex rel. Hafter v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1160 (10th Cir.

1999).

Plaintiff argues vigorously that Defendants caused her disability and otherwise

discriminated against her because of her disability.11 See Appellant’s Brief In Chief at 12-

16. The ADA, however, does not prohibit all disability discrimination. Instead, the Act

bars discrimination only against a “qualified individual with a disability”: “No covered

entity shall discriminate against a qualified individual with a disability because of the

disability of such individual in regard to . . . [the] terms, conditions, and privileges of

employment.” 42 U.S.C. § 12112(a) (emphasis added). Therefore, even if Defendants

discriminated against Plaintiff, if Plaintiff was not a “qualified individual with a disability,”

then the ADA provides no redress for that wrong. See, e.g., Smith v. Blue Cross Blue

Shield, 102 F.3d 1075, 1077-78 (10th Cir. 1996).

For the purposes of this appeal, Defendants concede that Plaintiff, in fact, is
11

disabled. We therefore do not address that part of the prima facie case.

- 32 -
 The term “qualified individual with a disability” means “an individual with a

disability who, with or without reasonable accommodation, can perform the essential

functions of the employment position that such individual holds or desires. . . .” 42 U.S.C.

§ 12111(8). This court has adopted a two-part test for determining whether a disabled

person meets that requirement:

First, we must determine whether the individual could perform the
essential functions of the job, i.e., functions that bear more than a marginal
relationship to the job at issue. Second, if (but only if) we conclude that the
individual is not able to perform the essential functions of the job, we must
determine whether any reasonable accommodation by the employer would
enable him to perform those functions.

Hudson v. MCI Telecommunications Corp., 87 F.3d 1167, 1168 (10th Cir. 1996) (citation

and internal quotation marks omitted); see also White v. York Int’l Corp., 45 F.3d 357,

361-62 (10th Cir. 1995) (same). “The determination as to whether an individual is a

‘qualified individual with a disability’ must be made as of the time of the employment

decision.” Nowak v. St. Rita High Sch., 142 F.3d 999, 1003 (7th Cir. 1998); see also

Smith, 102 F.3d at 1077 (stating a similar proposition).12

As demonstrated above, Plaintiff’s disability prevented her from attending work.

Attendance is generally an “essential” function of any job. See Nowak, 142 F.3d at 1003

(“Obviously, an employee who does not come to work cannot perform the essential

12
Thus, Defendant’s evidence that Plaintiff is still unable to work is not relevant
to the question whether she was a “qualified individual with a disability” at the time of
the challenged discrimination.

- 33 -
functions of his job.”); Rogers v. Int’l Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir.

1996) (“[A]n essential element of any job is an ability to appear for work. . . .”) (citation,

alteration, and internal quotation marks omitted). Indeed, Plaintiff concedes that

attendance is ordinarily an essential function of her job. See Appellant’s Brief In Chief at

11.

Because Plaintiff cannot perform an essential function of her position, we must

“determine whether any reasonable accommodation by the employer would enable [her] to

perform those functions.” Hudson, 87 F.3d at 1168. It is well-settled that a request for

leave may lead to a “reasonable” accommodation – such a request may allow an employee

sufficient time to recover from an injury or illness such that the employee can perform the

essential functions of the job (i.e., attend work) in the future. See 29 C.F.R. Pt. 1630,

Appendix to Part 1630 – Interpretative Guidance to Title I of the ADA, § 1630.2(o)

(Examples of possible accommodations include “permitting the use of accrued paid leave

or providing additional unpaid leave for necessary treatment.”); see also Taylor v. Pepsi-

Cola Co., 196 F.3d 1106, 1110 (10th Cir. 1999) (“An allowance of time for medical care or

treatment may constitute a reasonable accommodation.”) (citation and internal quotation

marks omitted); Rascon v. U.S. West Communications, Inc., 143 F.3d 1324, 1334 (10th

Cir. 1998) (stating the same rule); Hudson, 87 F.3d at 1168 (stating a similar proposition).

However, “[t]he term ‘reasonable accommodation’ refers to those accommodations

which presently, or in the near future, enable the employee to perform the essential

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functions of his job.” Hudson, 87 F.3d at 1169 (citation and internal quotation marks

omitted) (emphasis added); see also Meyers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995)

(stating the same proposition). Accordingly, a request for indefinite leave cannot constitute

“reasonable” accommodation – such a leave request does not allow the employee to

perform the essential functions of the job in the near future.13 Plaintiff suggests, however,

that she did not request indefinite leave. See Appellant’s Brief In Chief at 16. Instead, she

requested leave for a finite period of time: from November 1995 to January 1996. See id.

According to Plaintiff, she therefore requested a “reasonable” accommodation pursuant to

this court’s precedent. See, e.g., id.

Contrary to Plaintiff’s argument, this court has required an employee to provide an

expected duration of the impairment (not the duration of the leave request). See Hudson,

87 F.3d at 1169 (“This court agrees with plaintiff that a reasonable allowance of time for

medical care and treatment may, in appropriate circumstances, constitute a reasonable

accommodation. In this case, however, plaintiff has failed to present any evidence of the

expected duration of her impairment as of the date of her termination.”); see also Taylor,

196 F.3d at 1110 (stating a similar proposition); Rascon, 143 F.3d at 1334 (stating a similar

13
Other circuits have adopted similar requirements. See Nowak, 142 F.3d at 1004
(7th Cir.) (“The ADA does not require an employer to accommodate an employee who
suffers a prolonged illness by allowing him an indefinite leave of absence.”); see also
Mitchell v. Washington Cent. Sch. Dist., 190 F.3d 1, 9 (2d Cir. 1999) (stating a similar
proposition); Watkins v. J & S Oil Co., Inc., 164 F.3d 55, 62 (1st Cir. 1998) (similar);
Duckett v. Dunlop Tire Corp., 120 F.3d 1222, 1225 (11th Cir. 1997).

- 35 -
proposition); Smith, 102 F.3d at 1077 (stating a similar proposition). Without an expected

duration of an impairment, an employer cannot determine whether an employee will be able

to perform the essential functions of the job in the near future and therefore whether the

leave request is a “reasonable” accommodation. See, e.g., Hudson, 87 F.3d at 1169. For

example, in Rascon an employee submitted evidence from his doctor that the expected

duration of his treatment was four months and his prognosis for recovery was “good.” See

143 F.3d at 1334. In the circumstances, the court held that the employee’s request for leave

to seek treatment for his illness constituted “reasonable” accommodation. See id.

In Hudson, 87 F.3d at 1169, on the other hand, the employee submitted some

evidence that she was not permanently disabled. The employee, however, failed to

provide any evidence of the expected duration of the impairment. See id. In such

circumstances the court held that the employee failed to create a triable issue of fact

regarding the “reasonableness” of her requested leave. See id.; see also Taylor, 196 F.3d at

1110 (“As in Hudson, Plaintiff failed to present evidence of the expected duration of his

impairment.”); Smith, 102 F.3d at 1077 (rejecting the plaintiff’s ADA claim, because “[a]s

of the date of her replacement or termination, Smith had presented no evidence of the

expected duration of her complete disability”).

The district court correctly concluded that, as in Hudson, Taylor, and Smith, Plaintiff

failed to prove the expected duration of her illness and thereby the “reasonableness” of her

request for leave. See II App. at 342 (“Because she has not established if and when she

- 36 -
could return to work, she has not established that she is a qualified individual.”). As noted

above, Plaintiff submitted letters from her doctors when she requested extended leave. The

first letter, from Dr. Ray, stated that Plaintiff “remains unable to return to work. It is

uncertain when she may be capable of returning to work.” Id. at 184 (emphasis added).

The second letter, from Dr. Maestas, states that “[m]edically, [Plaintiff] is to be considered

unable to maintain any type of job duties and should be considered temporarily disabled.

The duration of the above illnesses are unknown, however, she will be followed very

closely in this office and should be excused from any and all work until January of 1996.”

Id. at 185 (emphasis added).

Thus the letters state that the duration of the illness is both “uncertain” and

“unknown.” Indeed, Plaintiff conceded below that the record contains “no firm date of

return to work. . . .” II App. at 324 (summary judgment hearing) (Plaintiff’s attorney); see

also id. at 325 (Plaintiff’s attorney) (“[T]here is nothing in this record at this time that

establishes she would be back at work at a certain date in 1996.”). In these circumstances

the letters from Plaintiff’s doctors do not establish that Plaintiff’s leave request was a

“reasonable” accommodation.

Plaintiff, however, cites her own affidavit here in which she states that she expected

to recover by January 1996. See II App. at 203 (“I believe I would have returned to work in

January 1996 if the Department employees had not begun to harass me.”). As the district

court correctly held, Plaintiff’s own belief is not sufficient to create a triable issue of fact,

- 37 -
especially where, as here, her belief is inconsistent with the evidence from her own doctors.

See II App. at 341-42 (district judge’s oral ruling) (“The only evidence in the record that I

can find with respect to this issue, is her affidavit, Exhibit 20, in which she states that she

believes she could have returned to work in January of 1996, if Department employees had

not harassed her. There is no other evidence. That is not the evidence necessary to

establish that she was capable of performing the essential functions of her position. She

has not established if or when she could return to work.”); see also Martin v. Nannie and

the Newborns, Inc., 3 F.3d 1410, 1418 (10th Cir. 1993) (“Martin is unable to provide

anything but her own unsupported assertion that the reasons given for her termination are a

pretext for sexual discrimination. Conclusory statements are insufficient to defeat a motion

for summary judgment.”); McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1130 (10th

Cir. 1998) (holding that the plaintiff’s own opinion was insufficient to establish a triable

issue of fact).

Plaintiff next argues that her request was “reasonable” because it complied with

Defendants’ leave polices. She argues that the court announced such a rule in Rascon. See

Appellant’s Brief In Chief at 17-18. We are not persuaded. As noted above, in Rascon this

court held that a leave request is not reasonable if the “plaintiff failed to present evidence

of the expected duration of her impairment.” In Rascon, 143 F.3d at 1334, the plaintiff

provided such evidence: the plaintiff’s doctor told the defendants that a four month in-

patient program was likely to effectively treat the plaintiff. See id. The court thus held that

- 38 -
the plaintiff had established that the leave request was a “reasonable” accommodation. See

id.

The ADA, however, does not require an employer to provide all reasonable

accommodations. Instead, an employer need not provide an accommodation that requires

“undue hardship.” See 42 U.S.C. § 12112(b)(5)(A) (“[T]he term discriminate includes . . .

not making reasonable accommodations to the known physical or mental limitations of an

otherwise qualified individual with disability . . . unless such covered entity can

demonstrate that the accommodation would impose an undue hardship on the operation of

the business of such covered entity.”). In Rascon, 143 F.3d at 1334, the defendants

claimed that providing the plaintiff with his requested leave would result in such a

hardship. The court held that the plaintiff’s leave request could not constitute undue

hardship because it was less onerous than the leave offered by the employer’s leave

policies. See id. at 1334-35.

Contrary to Plaintiff’s reading of Rascon, that case does not establish that a

requested leave is a “reasonable” accommodation if such leave is authorized by the

employer’s leave policies. Instead, Rascon holds that if leave requested is otherwise

“reasonable” – because it provides an expected duration of the impairment – then the leave

cannot constitute undue hardship if the requested leave is authorized by the employer’s

leave policies. Here Plaintiff never established that her request for leave was “reasonable.”

Therefore, pursuant to Rascon the court need not address whether her request would

- 39 -
constitute undue hardship. In the circumstances, the nature of Defendants’ leave policies is

simply not relevant.

In sum, Plaintiff has failed to establish that she was a “qualified individual with a

disability” because she failed to show that her requested leave was a “reasonable”

accommodation. Therefore, she cannot prevail on her claim under the ADA regardless of

whether Defendants caused her condition or subjected her to disability discrimination. In

these circumstances the district court correctly granted Defendants’ motion for summary

judgment on Plaintiff’s ADA claim.

IV

Plaintiff further asserts a retaliation claim. She argues that Defendants subjected her

to adverse employment actions because she had filed charges of discrimination with the

EEOC.14 Title VII makes it “an unlawful employment practice for an employer to

discriminate against any of his employees . . . because [the employee] has opposed any

practice made an unlawful employment practice by this subchapter. . . .” 42 U.S.C. §

14
In her opening brief, Plaintiff asserts that Defendants retaliated against her for
taking FMLA leave. See Appellant’s Brief In Chief at 25. FMLA does prohibit such
retaliation. See 29 U.S.C. § 2615(a)(1) (making it unlawful for an employer "to interfere
with, restrain, or deny the exercise of or the attempt to exercise, any right provided under"
the Act). However, Plaintiff neither alleged a violation of the FMLA in her complaint,
nor did she otherwise raise such a claim below. In the circumstances, we will not
consider Plaintiff’s FMLA retaliation argument. See Rademacher v. Colorado Ass'n of
Soil Conservation Dists. Med. Benefit Plan, 11 F.3d 1567, 1572 (10th Cir. 1993) (“The
general rule, however, is that the failure to raise the issue with the trial court precludes
review except for the most manifest error.”) (citation, alteration, and internal quotation
marks omitted).

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2000e-3(a). Title VII, therefore, prohibits an employer from retaliating against an

employee who has filed a charge of discrimination with the EEOC, see McGarry, 175 F.3d

at 1201, but only when the charge alleges discrimination on the basis of “race, color,

religion, sex, or national origin,” 42 U.S.C. § 2000e-2(a). Plaintiff’s charges alleged age

and disability discrimination. Accordingly, Plaintiff cannot state a claim of retaliation

under Title VII.

Like Title VII, the ADEA makes it

unlawful for an employer to discriminate against any of his employees or
applicants for employment, for an employment agency to discriminate against
any individual, or for a labor organization to discriminate against any member
thereof or applicant for membership, because such individual, member or
applicant for membership has opposed any practice made unlawful by this
section. . . .

29 U.S.C. § 623(d). Therefore, the ADEA prohibits an employer from retaliating against

an employee who has filed a charge of age discrimination with the EEOC. As indicated

above, however, the ADEA does not validly abrogate the states’ Eleventh Amendment

immunity. See Kimel, 120 S. Ct. at 650. Accordingly, Plaintiff cannot pursue a claim of

retaliation against Defendants, a state agency, under the ADEA.

Finally, the ADA, like Title VII and the ADEA, also provides that “[n]o person shall

discriminate against any individual because such individual has opposed any act or practice

made unlawful by this chapter.” 42 U.S.C. § 12203. Therefore, the ADA prohibits an

employer from retaliating against an employee who has filed a charge of disability

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discrimination with the EEOC. As stated above, the ADA (unlike the ADEA) validly

abrogates the states’ Eleventh Amendment immunity. Accordingly, we consider whether

Plaintiff adequately states a claim for retaliation under the ADA.

Retaliation claims generally proceed under the McDonnell Douglas burden-shifting

analysis. Gonzagowski v. Widnall, 115 F.3d 744, 749 (10th Cir. 1997).15 Under that

analysis, the employee must first establish a prima facie case of retaliation by

demonstrating that: “(1) she engaged in protected opposition to [ADA] discrimination or

participated in a[n] [ADA] proceeding; (2) she suffered an adverse employment action

contemporaneous with or subsequent to such opposition or participation; and (3) there is a

causal connection between the protected activity and the adverse employment action.”

Penry v. Federal Home Loan Bank of Topeka, 155 F.3d 1257, 1263-64 (10th Cir. 1998)

(quoting Cole v. Ruidoso Mun. Schs., 43 F.3d 1373, 1381 (10th Cir. 1994)); see also

Morgan v. Hilti, Inc., 108 F.3d 1319, 1324 (10th Cir. 1997) (stating the same requirement).

If the employee establishes a prima facie case, the burden then shifts to the employer

15
A plaintiff “may also establish discrimination directly, in which case the
McDonnell Douglas framework is inapplicable.” Medlock v. Ortho Biotech, Inc., 164
F.3d 545, 550 (10th Cir.), cert denied, 120 S. Ct. 48 (1999). “To prevail via this direct
method, a plaintiff must introduce direct or circumstantial evidence that the alleged
retaliatory motive actually relates to the question of discrimination in the particular
employment decision, not to the mere existence of other, potentially unrelated, forms of
discrimination in the workplace.” Id.; see also Shorter v. ICG Holdings, Inc., 188 F.3d
1204, 1207 (10th Cir. 1999) (“[S]tatements of personal bias or prejudice[] do not
constitute direct evidence of discrimination.”). Plaintiff has not argued (and cannot
successfully argue) that she satisfies that requirement.

- 42 -
to articulate legitimate, non-retaliatory reasons for the adverse action. See Medlock v.

Ortho Biotech, Inc., 164 F.3d 545, 550 (10th Cir.), cert denied, 120 S. Ct. 48 (1999). If the

employer meets its burden, the burden shifts back to the employee to demonstrate that the

proffered reasons are pretextual. See id. The employee can prove pretext by “showing

either that a discriminatory reason more likely motivated the employer or that the

employer’s proffered explanation is unworthy of credence.” Shorter v. ICG Holdings, Inc.,

188 F.3d 1204, 1208 (10th Cir. 1999) (citation, alteration, and internal quotation marks

omitted); see also Rea v. Martin Marietta Corp., 29 F.3d 1450, 1455 (10th Cir. 1994)

(stating the same requirement).

Plaintiff alleges that Defendant took several separate employment actions in

retaliation for her filing charges with the EEOC. We examine each claim in turn.

A

Plaintiff first alleges that Defendants refused to provide her with the donated leave

application because she had filed a charge with the EEOC. See Appellant’s Brief In Chief

at 24-26. To establish a prima facie case of retaliation, however, Plaintiff must prove,

among other requirements, that “she suffered an adverse employment action

contemporaneous with or subsequent to” the filing of her charge with the EEOC. Penry,

155 F.3d at 1263-64. Plaintiff concedes that Defendants refused to provide her with the

annual donated leave forms in early August. See II App. at 199 (Plaintiff’s affidavit) (“In

early August 1995, I went to the Human Resources Office of the Department. I requested

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from Carla Armijo the appropriate forms to complete to request Annual Donated Leave

pursuant to the Department’s Catastrophic Leave Policy. . . . Ms. Armijo told me that since

I had an attorney representing me on my grievance against the Department, she could not

give me any forms and refused to do so.”).

Plaintiff did not file her first charge with the EEOC until September 29, 1995, over a

month after the challenged employment action in early August. That being so, Plaintiff

cannot prove that the employment action occurred “contemporaneous with or subsequent

to” her filing a charge with the EEOC. Therefore, Plaintiff’s first claim of retaliation

fails.

B

Plaintiff further argues, however, that Defendants’ refusal to consider her request to

participate in the donated annual leave program constitutes unlawful retaliation. We are

persuaded that plaintiff established a prima facie case of retaliation: (1) Plaintiff filed a

charge of discrimination with the EEOC, which constituted protected opposition to ADA

discrimination; (2) Defendants denied plaintiff’s request to participate in the annual

donated leave program on November 6, 1995, a date subsequent to her filing of her first

EEOC charge on September 29, 1995; and (3) the temporal proximity between the

protected filing of the EEOC charge and the adverse employment action of refusing

Plaintiff’s request is sufficient to demonstrate a causal connection. See McGarry, 175 F.3d

at 1201.

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 The burden then shifted to Defendants to offer a legitimate, non-retaliatory rationale

for those decisions. Defendants met that burden by stating that it refused to consider

Plaintiff’s request because she was AWOL. See II App. at 189. The burden thus shifted

back to Plaintiff to prove that this proffered rationale was pretextual.

To demonstrate such pretext, Plaintiff points to the combination of circumstances of

the manner and timing of Defendants’ refusal to consider her application to participate in

the annual leave donation program, and Defendants’ designating her AWOL retroactively

to October 18, 1995. See Appellant’s Brief In Chief at 24-25. We agree that such

circumstances are sufficient for the trier of fact to find pretext.

Plaintiff requested that Defendants allow her to participate in the annual donated

leave program on October 16, 1995. See II App. at 182-83. At that time, Plaintiff was not

AWOL; she had been placed on leave without pay by her supervisor, pending completion

of a request for extended leave without pay (which Plaintiff also submitted on October 16,

1995). See id. at 170. Defendants received Plaintiff’s requests for extended leave without

pay and for participation in the annual donated leave program on October 18, 1995. See id.

at 182, 183, 187. On November 6, Defendants denied Plaintiff’s request for extended leave

without pay because Plaintiff refused to waive her right to return to an equivalent position.

See id. at 187-88. In that same November 6, 1995 letter, Defendants also placed Plaintiff

on AWOL status, retroactively to October 18, 1995, the date on which defendant received

Plaintiff’s requests. Defendants then refused to consider Plaintiff’s request to participate in

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the annual donated leave program because she was AWOL. See id. at 189.

A rational trier of fact could infer pretext from the timing and manner of

Defendants’ action. Specifically, Plaintiff was not AWOL when she submitted her request

to participate in the annual donated leave program and Defendants refused to consider her

request because it retroactively deemed her AWOL. Although Defendants may have

retroactively declared Plaintiff AWOL for a legitimate reason, a rational trier of fact could

also infer that Defendants took the action for an illegitimate reason. In the circumstances,

the district court erred by granting Defendants’ motion for summary judgment. See

Christie v. Iopa, 176 F.3d 1231, 1240 (9th Cir. 1999) (“Although Kimura's actions may

have an innocent explanation, on summary judgment the only question is whether a rational

juror could infer a noninnocent explanation. A rational juror could infer that Kimura's acts

showed affirmative agreement with Iopa's actions. In the circumstances, the district court

erred by granting summary judgment to Defendants on Anderson's claim. . . .”), cert.

denied, 120 S. Ct. 324 (1999); see also Marx v. Schnuck Markets, Inc., 76 F.3d 324, 329

(10th Cir. 1996) (“Granting plaintiff the benefit of every favorable inference, the pattern of

actions taken by defendants precludes summary judgment concerning defendants’

motivation in demoting plaintiff and terminating his employment.”); Corneveaux v. CUNA

Mut. Ins. Group, 76 F.3d 1498, 1504 (10th Cir. 1996) (“This case presented material

factual disputes which should have been resolved by the trier of fact. If the jury had found

CUNA's reasons to be pretexts for age discrimination then it could have inferred intentional

- 46 -
discrimination and found in favor of Ms. Corneveaux.”).

In sum, we hold that the summary judgment rejecting the retaliation claim was error

for reasons stated above in this Part IV-B of this opinion. With respect to this claim of

retaliation based on the manner and timing of Defendants’ refusal to consider Plaintiff’s

application for participation in the annual donated leave program and Defendants’ related

actions, we reverse the grant of summary judgment.

V

Plaintiff has challenged the district court’s decision to award costs to Defendants.

Because we have reversed the district court’s decision in part, we remand for

reconsideration of the cost question in light of our decision.

VI

Accordingly we AFFIRM in part and REVERSE in part the district court’s grant of

summary judgment for Defendants. We REMAND for further proceedings consistent with

this opinion.

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 APPENDIX

In full, 42 U.S.C. § 12101 states:

The Congress finds that--

(1) some 43,000,000 Americans have one or more physical or mental
disabilities, and this number is increasing as the population as a whole is
growing older;

(2) historically, society has tended to isolate and segregate individuals with
disabilities, and, despite some improvements, such forms of discrimination
against individuals with disabilities continue to be a serious and pervasive
social problem;

(3) discrimination against individuals with disabilities persists in such critical
areas as employment, housing, public accommodations, education,
transportation, communication, recreation, institutionalization, health
services, voting, and access to public services;

(4) unlike individuals who have experienced discrimination on the basis of
race, color, sex, national origin, religion, or age, individuals who have
experienced discrimination on the basis of disability have often had no legal
recourse to redress such discrimination;

(5) individuals with disabilities continually encounter various forms of
discrimination, including outright intentional exclusion, the discriminatory
effects of architectural, transportation, and communication barriers,
overprotective rules and policies, failure to make modifications to existing
facilities and practices, exclusionary qualification standards and criteria,
segregation, and relegation to lesser services, programs, activities, benefits,
jobs, or other opportunities;

(6) census data, national polls, and other studies have documented that people
with disabilities, as a group, occupy an inferior status in our society, and are
severely disadvantaged socially, vocationally, economically, and
educationally;

(7) individuals with disabilities are a discrete and insular minority who have
been faced with restrictions and limitations, subjected to a history of

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 purposeful unequal treatment, and relegated to a position of political
powerlessness in our society, based on characteristics that are beyond the
control of such individuals and resulting from stereotypic assumptions not
truly indicative of the individual ability of such individuals to participate in,
and contribute to, society;

(8) the Nation's proper goals regarding individuals with disabilities are to
assure equality of opportunity, full participation, independent living, and
economic self-sufficiency for such individuals; and

(9) the continuing existence of unfair and unnecessary discrimination and
prejudice denies people with disabilities the opportunity to compete on an
equal basis and to pursue those opportunities for which our free society is
justifiably famous, and costs the United States billions of dollars in
unnecessary expenses resulting from dependency and nonproductivity.

(b) Purpose

It is the purpose of this chapter--

(1) to provide a clear and comprehensive national mandate for the elimination
of discrimination against individuals with disabilities;

(2) to provide clear, strong, consistent, enforceable standards addressing
discrimination against individuals with disabilities;

(3) to ensure that the Federal Government plays a central role in enforcing the
standards established in this chapter on behalf of individuals with disabilities;
and

(4) to invoke the sweep of congressional authority, including the power to
enforce the fourteenth amendment and to regulate commerce, in order to
address the major areas of discrimination faced day-to-day by people with
disabilities.

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No. 98-2215, Rebecca Cisneros v. Heather Wilson et al.

KELLY, Circuit Judge, concurring in part and dissenting in part.

I.

At oral argument, Defendants raised the Eleventh Amendment, which had not

been presented to the district court or in their appellate briefs. The Eleventh

Amendment may be raised at any stage of the proceedings, and sua sponte. See

Calderon v. Ashmus, 523 U.S. 740, 745 n.2 (1998); Higgins v. Mississippi, 217 F.3d

951, 953-54 (7th Cir. 2000); United States ex rel. Long v. SCS Business & Technical

Institute, Inc., 173 F.3d 890, 893 (D.C. Cir. 1999). Our cases have considered

Eleventh Amendment immunity sua sponte, and in similar circumstances. See, e.g.,

Sutton v. Utah State Sch. for the Deaf and Blind, 173 F.3d 1226, 1231-32 (10th Cir.

1999); V-1 Oil Co. v. Utah State Dep’t of Pub. Safety, 131 F.3d 1415, 1419-20 (10th

Cir. 1997); Mascheroni v. Board of Regents of the Univ. of Cal., 28 F.3d 1554, 1559

(10th Cir. 1994).

In view of the Supreme Court’s holding in Wisconsin Dep’t of Corrections v.

Schacht, 524 U.S. 381 (1998), however, it seems appropriate to consider whether the

Defendants have waived their Eleventh Amendment immunity argument.

According to the Court,

The Eleventh Amendment . . . does not automatically
destroy original jurisdiction. Rather, the Eleventh
Amendment grants the State a legal power to assert a
sovereign immunity defense should it choose to do so. The
 State can waive the defense. Nor need a court raise the
defect on its own. Unless the State raises the matter, a court
can ignore it.

Schacht, 524 U.S. at 389. To be sure, past Supreme Court cases have implied that

Eleventh Amendment immunity is in the nature of a subject matter jurisdiction

defense. See id., 524 U.S. at 393 (Kennedy, J., concurring). While the Eleventh

Amendment may be a limitation on a federal court’s judicial power, “it is not

coextensive with the limitations on judicial power in Article III.” Calderon, 523 U.S.

at 745 n.2. Were the Eleventh Amendment truly jurisdictional, a court would not be

free to ignore it. See Parella v. Retirement Bd. of the R.I. Employees Retirement Sys.,

173 F.3d 46, 55-56 (1st Cir. 1999). Even the Supreme Court has addressed merits

questions before Eleventh Amendment immunity. See Vermont Agency of Natural

Resources v. United States ex rel. Stephens, 120 S. Ct. 1858, 1865-66 (2000).

Here, Defendants were represented by the able Legal Bureau of the New Mexico

State Risk Management Division, and did not raise Eleventh Amendment immunity as

an affirmative defense in their answer. They moved to dismiss only the individual

Defendants named in their individual capacities. In replying to Plaintiff’s argument

against the motion, Defendants relied upon abrogation of Eleventh Amendment

immunity and stated:

The waiver of the state’s immunity has been validated, at least for Title
VII and whether the waiver is valid for the ADA has not been
conclusively determined in light of Seminole Tribe of Fla. v. Florida ,
[517 U.S. 44] (1996), but that issue is not asserted in the pending motion.

-2-
Aplt. App. 26. The district court agreed that Eleventh Amendment immunity had been

abrogated pursuant to section 5 of the Fourteenth Amendment. Id. at 29. After failing

to make an argument that the ADA’s abrogation of Eleventh Amendment immunity

was invalid, Defendants participated in discovery and then moved for summary

judgment on the merits.

Although a state’s waiver of Eleventh Amendment immunity must be clear and

unequivocal, waiver is possible where the state voluntarily invokes federal jurisdiction

or clearly declares its intent to submit to federal jurisdiction. See College Sav. Bank

v. Florida Prepaid Postsecondary Educ. Expense Bd. , 119 S. Ct. 2219, 2226 (1999).

We have found waiver where a state removes a case to federal court, asserts immunity

and then defends on the merits. See McLaughlin v. Board of Trustees of State

Colleges of Colo. , 215 F.3d 1168, 1170-71 (10th Cir. 2000) (adopting Justice

Kennedy’s approach in his concurring opinion in Schacht ); see also Sutton , 173 F.3d

at 1234-36 (state removed to federal court and litigated on the merits). Of course,

merely defending a suit in federal court does not amount to a waiver. But where a

state is aware of the Eleventh Amendment argument but withholds it in favor of

defending on the merits, its conduct may amount to a waiver. See Neinast v. Texas ,

217 F.3d 275 (5th Cir. 2000) (“[T]he state cannot simultaneously proceed past the

motion and answer stage to the merits and hold back an immunity defense”); Hill v.

Blind Indus. & Servs. of Maryland , 179 F.3d 754, 762-63 (9th Cir. 1999). In deciding

-3-
this issue, we may look to the conduct of the state claiming Eleventh Amendment

immunity. See Innes v. Kansas State Univ. (In re Innes) , 184 F.3d 1275, 1280 (10th

Cir. 1999), cert. denied , 120 S. Ct. 1530 (2000). Defendants never presented their

current argument to the district court, preferring to hedge the bet at the court of

appeals during oral argument. Because the case is easily resolved on grounds narrower

than the Eleventh Amendment, I would not reach the Eleventh Amendment issue. See

Parella , 173 F.3d at 56-57; see generally Three Affiliated Tribes v. Wold Eng'g, P.C. ,

467 U.S. 138, 157 (1984); Ashwander v. Tennessee Valley Auth. , 297 U.S. 288, 347

(1936) (Brandeis, J., concurring).

II.

I concur in the court’s opinion on the merits (parts III & IV), with the exception

of part IV(B), which reverses summary judgment on the ADA retaliation claim. While

it is true that Plaintiff was on leave without pay status at the time she made her request

to participate in the leave donation program, that leave without pay status was only

until Defendants received a completed request for extended leave without pay. Aplt.

App. 170 (Defendants’ letter to Plaintiff dated 9/29/95) (“On Friday, September 15,

Christine B. Romero, Director of the Human Resources Division, verbally approved

leave without pay (as opposed to ‘extended leave without pay’) until such time as the

Department receives your completed Request for Extended Leave Without Pay form

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so we can make a formal decision based on applicable rules.”). Plaintiff’s request was

received on October 18, 1995. Aplt. App. 187. On November 6, 1995, the Defendant

denied the request for extended leave without pay because Plaintiff would not waive

the “like status and pay, at the same geographic location” condition. Id. at 188.

Plaintiff was placed in AWOL status as of October 18, 1995, which was the date that

the leave without pay status ran out. See id. She was also given additional time to

waive the condition. See id.

Though the Court states that placement in AWOL status was retroactive, Prop.

Op. at 46, it must be remembered that Plaintiff’s status after October 18, 1995, was

a fait accompli if she would not waive the condition. None of the summary judgment

material suggests that Defendants were under any obligation to grant her extended

leave without pay when she would not waive the condition, and then allow her to

participate in the leave program.

In seeking summary judgment, Defendants articulated a legitimate, non-

discriminatory reason for placing the Plaintiff in AWOL status as of October 18,

1995–specifically, Plaintiff refused to waive the pertinent condition. See Aplt. App.

41; Aplee. Supp. App. 32-33. Defendant then refused to consider the leave donation

request as Plaintiff was AWOL and not in good standing. See Aplt. App. 115, 271.

Plaintiff was warned repeatedly about this and the evidence indicates that a failure to

report for work when FMLA leave expired might be considered a voluntary

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resignation. See Aplee. Supp. App. 26.

In my view, Plaintiff completely failed to demonstrate pretext. See Anderson

v. Coors Brewing Co. , 181 F.3d 1171, 1180 (10th Cir. 1999) (discussing pretext). For

example, Plaintiff’s response to the summary judgment motion states:

25. Other employees of the Defendant have been granted donated annual
leave despite the sworn affidavit of Christine Romero, which contradicts
her deposition testimony. 16 Her affidavit indicates no other coworkers of
Plaintiff had been granted said leave.

26. Defendant Christine Romero has indicated an animosity towards the
Plaintiff over a number of years.

Aplt. App. 144 (citations omitted). Plaintiff then points to a coworker (Don Lawson)

who requested donated annual leave because of a medical condition that required a six-

month absence. Id. at 174, 202. Plaintiff, however, has no evidence that the coworker

was similarly situated to her–that the coworker was at a point where he needed

indefinite extended leave without pay and refused to waive the pertinent condition

simultaneously with requesting leave donations. Cf. Krouse v. American Sterilizer

Co. , 126 F.3d 494, 504 (3rd Cir. 1997) (analyzing “similarly situated” in ADA

retaliation context). Nothing indicates that the Defendant’s reasons are unworthy of

belief, thus, I respectfully dissent from part IV(B).

16
The contradiction is hardly apparent. In opposing summary judgment, Plaintiff
has the burden to explain. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671-72
(10th Cir.1998)

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