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Cutrer v. Tarrant County Local Workforce Development Board

United States Court of Appeals, Fifth Circuit

November 22, 2019

KATHIE CUTRER, Plaintiff-Appellant,
TARRANT COUNTY LOCAL WORKFORCE DEVELOPMENT BOARD, doing business as Tarrant County Workforce Solutions; INSPERITY INCORPORATED, Defendants-Appellees.

          Appeal from the United States District Court for the Northern District of Texas

          Before WIENER, GRAVES, and OLDHAM, Circuit Judges. [*]


         Kathie 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.


         The 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).

         Under 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 [1]-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.

         Workforce 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 discrimination.

         Then 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 ("FCRA").

         Cutrer 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 appealed.[2]


         Sovereign 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 & Wechsler].

         At our 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 ...

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