Happy Anniversary to Us!

Shaw Valenza just celebrated its sixth anniversary on 6/19/06.  That means it's been six years since we started this blog. So, more than 500 posts after we began, we thank you once again for reading, commenting, and forwarding our posts.

Thanks and best wishes,

Greg

SV Makes Some Law: No Section 1983 Claims Based on ADA

It's nice to blog about one of your own cases, and even better when it's a victory.  So, Josephine Okwu was a Caltrans employee, who agreed to disability retirement status.  She then wanted to be reinstated from disability retirement status to her former job. Denied, she was unsuccessful under civil service procedure. She then sued CalPERS and Caltrans officials in federal court under 42 U.S.C. Section 1983 for violation of her civil rights.

She had to rely on Section 1983, she believed, because she could not sue her employer, Caltrans, under the Eleventh Amendment.  She could not sue CalPERS, either.  She could not use the ADA to sue the individuals in any court, because individuals cannot be held liable under the ADA.

The district court dismissed the case because Section 1983 cannot be used as a substitute claim for ADA claims that are not viable in federal court. The Ninth Circuit affirmed:

We conclude that Congress’s inclusion of a comprehensive remedial scheme in Title I of the ADA precludes § 1983 claims predicated on alleged violations of ADA Title I substantive rights. We also conclude that Okwu’s allegations of fact do not state a claim under the Equal Protection Clause. We therefore affirm.

The case is Okwu v. McKim and the opinion is here.