Jon Campisi Dec. 10, 2013, 6:59am


A U.S. District judge in Philadelphia has revived a lawsuit brought against

the Pennsylvania Department of Environmental Protection by a man who alleges he was denied a position because of his prosthetic leg.

Judge Mitchell S. Goldberg, sitting in the Eastern District of Pennsylvania, issued a memorandum and order Dec. 4 that allows Chandler P. Smith’s suit against the state DEP to proceed.

Smith, an engineer by trade, filed suit against the agency over claims that he was not chosen for any open job positions because of his disability, which might require special accommodations by the employer.

Alternatively, Smith argued that he was denied a job because of his age.

Earlier this year, the district court dismissed the complaint, determining that the relief sought was barred by the Eleventh Amendment, which shields states and governmental agencies from federal lawsuits to which they have not consented.

The DEP’s motion to terminate the suit on Eleventh Amendment grounds came after Smith sought an order requiring the agency to hire him to fill an open position.

Records show that that Third Circuit U.S. Court of Appeals subsequently vacated a portion of the lower court’s ruling, with appeals judges finding that the trial court neglected to consider separately whether Smith’s requested injunctive relief, as opposed to his claim for damages, was similarly barred.

Smith had urged the trial court to order the secretary of the DEP to hire him, arguing that such relief is available under the exception to Eleventh Amendment immunity for suits against state officials for prospective injunctive relief.

After getting the case on remand, Mitchell, the trial judge, determined last week that the Eleventh does not bar Smith’s requested relief.

Goldberg’s memorandum notes that while Smith is not able to sue the commonwealth, he can sue a state official for prospective injunctive relief, on the theory that a state agent enforcing an unconstitutional state law or practice is “stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct.”

Once beyond the protection of sovereign immunity, the judge wrote, that official may be required by an injunction to “conform future conduct to the requirements of federal law.”

Mitchell wrote that case law has determined that an injunction requiring a state official to reinstate an employee terminated in violation of federal law does not offend the Eleventh Amendment, but Smith’s case was different, because the plaintiff's complaint sought an injunction ordering a new hiring.

The DEP secretary had argued that an injunction ordering a new hiring would not be “designed to end a continuing violation of federal law,” but rather would be a remedy for a “discrete” violation of federal law that occurred in the past, and would thus be barred by the Eleventh Amendment, Mitchell’s memorandum states.

The judge wrote, however, that the defendant’s argument fails to explain why the wrongful failure to hire is any different than the termination of an employee.

“Failure to hire and termination are both discrete acts in the sense that the Secretary uses the term,” Mitchell wrote. “Accordingly, at this early stage of the litigation, we hold that Plaintiff’s failure to hire claim may proceed, insofar as it seeks only an order directing the Secretary to hire him.”

Smith, who is suing pro-se, says he was 52 years old when he filed his first charge of discrimination with the U.S. Equal Employment Opportunity Commission in August 2009, records show.

He claims he was denied a job following an interview at the DEP’s Williamsport, Pa. office the previous August.

During the interview, his complaint states, Smith was told the position might require him to inspect a landfill on short notice and in wet conditions, which would require him to walk on steep slopes.

The interviewer allegedly never progressed this stage of the interview, presumably because Smith would be unable to meet this requirement due to his wearing a prosthetic, the record shows.

Smith interviewed with the DEP on three subsequent occasions.

During one, he was told he could perform the job, during the second he was advised that he would need an accommodation, and during the third he was informed he was not getting the job, according to the record.

Smith, an environmental engineer with 20 years of experience in the field, is convinced that either his disability, age, or both were reasons for the job denial.

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