Pennsylvania DOC did not discriminate against former employee, Third Circuit says

By Nicholas Malfitano | Apr 10, 2017

PHILADELPHIA – A plaintiff’s appeal to the dismissal of his complaint for failure to state a claim for discrimination under the Americans with Disabilities Act (ADA) and age discrimination under the Age Discrimination in Employment Act (ADEA) has been rejected by the U.S. Court of Appeals for the Third Circuit.

On March 27, Judges D. Brooks Smith, Theodore A. McKee and L. Felipe Restrepo ruled judgment was entered in favor of defendants Pennsylvania Department of Corrections and Secretary of the Department of Corrections John E. Wetzel and against plaintiff James G. Kreutzberger.

“All of Kreutzberger’s claims were filed against the Pennsylvania Department of Corrections and John E. Wetzel, individually and acting in his capacity as the Secretary of the Department of Corrections. The District Court dismissed the ADA and ADEA claims against both defendants, ruling that they were immune from suit under the Eleventh Amendment. The court declined to exercise supplemental jurisdiction over the remaining state law claim. The dismissal was with prejudice because the court concluded that any amendment would be futile given the immunity afforded defendants under the Eleventh Amendment,” McKee said.

With respect to the ADA and ADEA claims against the Pennsylvania Department of Corrections, McKee explained they were dismissed and the Court’s rationale in doing so.

“The Eleventh Amendment prohibits private parties from bringing suits against states and state agencies absent their consent or Congressional abrogation. The Commonwealth of Pennsylvania has not consented to waiver of Eleventh Amendment immunity, and Kreutzberger does not argue to the contrary. In addition, Congress has not validly abrogated a state’s immunity from suits for damages under the ADA or the ADEA. The Pennsylvania Department of Corrections is thus immune from suit in federal court pursuant to the Eleventh Amendment. We therefore affirm the dismissal of the ADA and ADEA claims against the Pennsylvania Department of Corrections,” McKee said.

As for the similar claims against Secretary Wetzel, McKee indicated they would meet a similar fate.

“Kreutzberger includes claims for injunctive relief against Secretary Wetzel in his official capacity. On appeal, Kreutzberger attempts to rely on Ex parte Young and its progeny to argue that his claim for injunctive relief against Wetzel in his official capacity is not barred by the doctrine of sovereign immunity. However, he never made that argument in his Response to Defendants’ Motion to Dismiss Complaint in the District Court,” McKee stated. 

McKee explained Kreutzberger’s sole ground for opposing the motion to dismiss for failure to state a claim was his argument that dismissal under Rule 12(b)(6) was premature and that the court should allow him to take discovery.

“In opposing dismissal pursuant to the doctrine of sovereign immunity, Kreutzberger argued: The defendant is attempting to dismiss the case before any discovery has taken place and has done so without even an affidavit or any other document attached to the Motion to Dismiss,” McKee said.

“Kreutzberger did not mention or cite to Ex parte Young, or suggest that his claim for prospective injunctive relief precludes application of sovereign immunity. We have consistently held that we will not entertain arguments raised for the first time on appeal. Since his claims are clearly otherwise barred by Eleventh Amendment sovereign immunity, the District Court did not err in granting the Motion to Dismiss under Rule 12(b)(6),” McKee concluded.

The plaintiff was represented by Jerome J. Kaharick of Jerome J. Kaharick & Associates, in Johnstown.

The defendants were represented by Elizabeth C. Lawson and Lisa Hughes Gabler of the Pennsylvania Department of Corrections, in Mechanicsburg.

U.S. Court of Appeals for the Third Circuit case 16-1429

U.S. District Court for the Eastern District of Pennsylvania case 3:15-cv-00119

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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