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Employment Discrimination Removal did not waive sovereign immunity

Employment Discrimination Removal did not waive sovereign immunity

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Where a police officer suffered post-traumatic stress disorder as a result of being frequently exposed to child pornography at work, and could not sue under the under the Americans with Disability Act because the state was immune, but he could pursue claims of discrimination and harassment in federal court in violation of Title VII of the Civil Rights Act.


In 2008, Antonio Passaro Jr., a special agent with the Virginia Department of State Police, was transferred to the Department’s High Tech Crimes Unit where he investigated child pornography cases. In 2010, he began receiving disciplinary notices arising from his alleged failure to follow proper procedures and manage his caseload.

In July 2012, Passaro was diagnosed with PTSD as a result of his frequent exposure to child pornography. Passaro sought a transfer from the High Tech Crimes Unit but his request was denied.

On Feb. 6, 2013, Passaro learned that he was being recommended for a demotion back down to trooper. Two days later, he filed a complaint with the Equal Employment Opportunity Commission, or EEOC, claiming that the department failed to make a reasonable accommodation for his PTSD and had harassed and discriminated against him on the basis of his disability and national origin.

Passaro was fired in March 2013, purportedly for bungling an investigation he had conducted in April and May 2012. Passaro filed a grievance with Virginia’s Office of Employment Dispute Resolution, claiming that his discipline and termination were unjustified and that he had been the victim of discrimination and harassment. The hearing officer overturned some of disciplinary action against Passaro but ultimately upheld his termination. That decision was affirmed by the hearing officer upon remand from state court, and Passaro’s subsequent administrative and state court appeals were denied.

In November 2016, while his appeals were ongoing, Passaro brought the instant action against the commonwealth in state court. The commonwealth removed the action to federal district court and the district court dismissed Passaro’s ADA claim as barred by state sovereign immunity. The district court later granted the commonwealth summary judgment on Passaro’s claim for national-origin discrimination under Title VII of the Civil Rights Act based on the claim preclusive effect of the state court proceedings. This appeal followed.


Contrary to Passaro’s contentions, under Fourth Circuit precedent, where a state retains its sovereign immunity from suit in state court, it does not lose that immunity by removing the case to federal court.

Further, while Passaro identifies several statements made by the commonwealth regarding its intentions to abide by its obligations under Title I of the ADA and allow its employees may raise violations with the EEOC, these statements merely affirm that the covered by Title 1 and is not immune from EEOC investigations of Title I violations. As these statements have nothing to do with immunity from private lawsuits, they are insufficient to show a clear waiver of sovereign immunity.

Virginia Code § 2.2-3903(D) likewise fails to constitute a clear waiver of sovereign immunity as the language therein merely confirms that the Virginia Human Rights Act does not create an implied private right of action. As such, the district court correctly dismissed Passaro’s ADA claim.

However, the commonwealth’s claim preclusion defense to Passaro’s Title VII claims fails because Passaro could not have presented his entire case in one action. Virginia’s grievance procedures offer substantive claims that employees cannot pursue in a typical civil action, such as seeking to overturn a disciplinary action based on an internal policy violation. On the other hand, a Title VII action offers compensatory damages that are unavailable through the grievance process. Under these circumstances, neither the grievance process nor a Title VII lawsuit offered a single proceeding where Passaro could litigate all his claims for relief.

Notably, the commonwealth conceded at oral argument that there is no basis to conclude that Passaro could have asserted a Title VII claim for money damages as part of the subsequent state-court action appealing the grievance decision. Because Passaro could not have sought money damages in the prior suit, claim preclusion does not bar him from seeking money damages in this federal action.

While it is true that claim preclusion applies regardless of the particular remedies sought, there is a critical distinction between the remedies sought and the remedies available. A litigant has no right to split his claim by voluntarily choosing to seek only some of the remedies available to him, but a litigant who is forced by procedural rules to split his claim may return to court to seek remedies that were unavailable to him in the first proceeding.

Affirmed in part, reversed in part and remanded.


(Traxler, J.): As to how Virginia courts would resolve the claim preclusion issue, I would certify this question to the Supreme Court of Virginia.

Passaro v. Commonwealth of Virginia (Lawyers Weekly No. 001-163-19, 20 pp.) (Julius N. Richardson, J.) (William Byrd Traxler Jr., J., concurring in part and dissenting in part) Case No. 18-1789. Aug. 16, 2019. From E.D. Va. at Norfolk (Douglas E. Miller, M.J.) Kevin Edward Martingayle for Appellant; Toby J. Heytens for Appellees.


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