from the United States District Court for the Northern
District of Texas
WIENER, GRAVES, and OLDHAM, Circuit Judges. [*]
S. OLDHAM, CIRCUIT JUDGE
Cutrer worked for the Tarrant County Workforce Development
Board d/b/a "Workforce Solutions" for 17 years.
Workforce Solutions fired Cutrer six months before she
would've been eligible for retirement. Cutrer sued for
discrimination. Workforce Solutions says it's
basically the State of Texas and hence enjoys state
sovereign immunity. We disagree.
Texas Workforce Investment Act establishes a multi-tiered
workforce development system. See Tex. Gov't
Code §§ 2308.001-.403; Arbor E & T, LLC v.
Lower Rio Grande Valley Workforce Dev. Bd., Inc., 476
S.W.3d 25, 31 (Tex. App.-Corpus Christi 2013, no pet.). The
top tier is the Texas Workforce Commission ("TWC").
TWC is "a state agency established to operate an
integrated workforce development system in [Texas] . . . and
to administer the unemployment compensation insurance program
in [the] state." Tex. Lab. Code § 301.001(a). The
bottom tier is comprised of local workforce development
boards, like Workforce Solutions. Such local boards
"plan and oversee the delivery of workforce training and
services," and "evaluate workforce development in
[their respective] workforce development area[s]." Tex.
Gov't Code § 2308.253(a).
Texas law, the political leaders in a "workforce
development area" can agree to create a local workforce
development board. See ibid. Here, the
"workforce development area" is Tarrant County,
Texas. In 1996, three local government leaders in Tarrant
County-the mayor of Fort Worth, the mayor of Arlington, and
the county judge of Tarrant -agreed to create such a board.
Today, that board does business as "Workforce
Solutions." All or almost all of Workforce
Solutions' employees are co-employed by a for-profit
company called Insperity, Inc.
Solutions hired Cutrer on May 29, 2000. (It is unclear from
the record whether Cutrer was co-employed by Insperity.)
Sometime around August 22, 2000, Cutrer was injured in a car
accident. Those injuries included a broken neck, which
required multiple surgeries and a double spinal fusion. For a
time, Workforce Solutions accommodated Cutrer's
well-documented disabilities. It stopped doing so in 2016.
The same year, Workforce Solutions and Cutrer's
supervisor allegedly engaged in various acts of
Workforce Solutions fired Cutrer. The parties agreed in
writing to settle Cutrer's various complaints for $33,
750. But, adding insult to injury, Workforce Solutions
reneged on the settlement agreement, retroactively changed
Cutrer's employment status from "voluntary
termination" to "termination for poor job
performance," and used her personal information in
violation of the Fair Credit Reporting Act
sued both Workforce Solutions and Insperity for
discrimination, retaliation, post-employment retaliation
under the Americans with Disabilities Act ("ADA"),
and for violations of the FCRA. Workforce Solutions moved to
dismiss under Federal Rule of Civil Procedure 12(b)(1) on the
ground that it enjoys "sovereign immunity." The
district court granted the motion. Cutrer timely
immunity has ancient origins. It dates at least as far back
as Bracton in the thirteenth century. See, e.g., 2
Bracton, De Legibus et Consuetudinibus Angliae 33 (George
Woodbine ed., Samuel Thorne trans. 1968) (London 1569 ed.,
folio 5b, Bk. I, ch. 8); Louis L. Jaffe, Suits Against
Governments and Officers: Sovereign Immunity, 77 Harv.
L. Rev. 1, 2 (1963) ("By the time of Bracton (1268) it
was settled doctrine that the King could not be sued eo
nomine in his own courts."). And it derives from
the sovereignty of the King: "[T]he law ascribes to the
king the attribute of sovereignty, or
preeminence," which means he is "accountable to no
man," and "no suit or action can be brought against
[him], even in civil matters, because no court can have
jurisdiction over him." 1 William Blackstone,
Commentaries *241-42; see also Richard H. Fallon,
Jr. et al., Hart & Wechsler's The Federal Courts and
the Federal System 877-80 (7th ed. 2015) [hereinafter Hart
Nation's Founding, one of the Anti-Federalists'
concerns was whether the States would enjoy sovereign
immunity in the new Article III courts. The States were
laboring under more than $200 million in Revolutionary War
debt. That made the Anti-Federalists worry that the
State-Citizen Clause in Article III, § 2 would allow
out-of-state citizens to use the federal courts to sue States
and collect the debts. For example, Brutus said the
State-Citizen Clause was "improper, because it subjects
a state to answer in a court of law, to the suit of an
individual." Brutus XIII (Feb. 21, 1788), in 2
The Complete Anti-Federalist 429 (Herbert Storing ed. 1981).
Federal Farmer was blunter:
How far it may be proper to admit a foreigner or the citizen
of another state to bring actions against state governments,
which have failed in performing so many promises made during
the war, is doubtful: How far it may be proper so to humble a
state, as to bring it to answer to an individual in a court
of law, is worthy of consideration; the states are now
subject to no such actions, and this new jurisdiction will
subject the states, and many defendants to actions, and
processes, which were not in the contemplation of the
parties, when the contract was made; all engagements existing
between . . . states and citizens of other states were made
[with] the parties ...