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Passaro v. Commonwealth of Virginia

United States Court of Appeals, Fourth Circuit

August 16, 2019

ANTONIO PASSARO, JR., Plaintiff - Appellant,
v.
COMMONWEALTH OF VIRGINIA; VIRGINIA DEPARTMENT OF STATE POLICE, Defendants - Appellees,

          Argued: April 3, 2019

          Appeal from the United States District Court for the Eastern District of Virginia at Norfolk. Douglas E. Miller, Magistrate Judge. (2:17-cv-00048-DEM)

         ARGUED:

          Kevin Edward Martingayle, BISCHOFF MARTINGAYLE, P.C., Virginia Beach, Virginia, for Appellant

          Toby Jay Heytens, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.

         ON BRIEF:

          Mark Herring, Attorney General, Samuel T. Towell, Deputy Attorney General, Sydney E. Rab, Senior Assistant Attorney General, Sarah F. Robb, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.

          Before RICHARDSON, Circuit Judge, TRAXLER, Senior Circuit Judge, and Joseph F. ANDERSON, Jr., Senior United States District Judge for the District of South Carolina, sitting by designation.

          RICHARDSON, CIRCUIT JUDGE.

         Antonio Passaro Jr. is a former Special Agent with the Virginia State Police. He claims that he faced unlawful discrimination based on his mental disability (post-traumatic stress disorder) and national origin (Italian-American). He also claims that he was unlawfully fired in retaliation for filing a complaint with the Equal Employment Opportunity Commission ("EEOC"). This conduct, he claims, violated the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. He has sued the Commonwealth of Virginia and the Virginia Department of State Police (together, "the Commonwealth"), seeking relief that includes compensatory damages, reinstatement, and back pay.

         The district court dismissed Passaro's ADA claim, concluding that it was barred by state sovereign immunity. The court then granted summary judgment for the Commonwealth on the Title VII claims, concluding they were barred by the claim-preclusive effect of a state-court judgment upholding the outcome of an administrative grievance Passaro had filed. We affirm the district court's dismissal of the ADA claim because the Commonwealth has not waived its sovereign immunity from that claim. But we reverse the district court's decision that claim preclusion bars Passaro's Title VII claims.

         I.

         Passaro worked as a Trooper with the Department of State Police until his promotion to Special Agent. In 2008, he transferred to the department's High Tech Crimes Unit, where he investigated child-pornography cases. Starting in 2010, he began receiving disciplinary notices for infractions arising from his alleged failure to follow proper procedures and to manage his caseload. The episode that ultimately led to Passaro's termination was an investigation he conducted in April and May 2012, which the department claims he bungled.

         In July 2012, a doctor diagnosed Passaro with post-traumatic stress disorder arising from his frequent exposure to images of child pornography at work. Passaro sought a transfer from High Tech Crimes, which he claims was not granted.

         On February 6, 2013, Passaro learned that he was being recommended for demotion from Special Agent back down to Trooper. Two days later, Passaro filed a complaint with the EEOC, asserting that the department had failed to make reasonable accommodations for his post-traumatic stress disorder and had harassed and discriminated against him based on his disability and national origin.

         In March 2013, Passaro was fired. He then filed a grievance with Virginia's Office of Employment Dispute Resolution under Virginia Code § 2.2-3003. He claimed that his discipline and termination were unjustified, and also that he had been the victim of discrimination and harassment. The grievance was assigned to a hearing officer, who promptly held a hearing and issued a decision that largely focused on whether Passaro's discipline comported with internal department policies. Despite overturning some of the disciplinary action against Passaro, the hearing officer upheld Passaro's termination.

         Passaro sought review of the hearing officer's ruling. He filed administrative appeals, which were denied. Passaro also appealed to a Virginia state court for review of whether the grievance decision was "contradictory to law" under Virginia Code § 2.2-3006(B). The court largely rejected Passaro's arguments but concluded the hearing officer had overlooked certain testimony. On remand, the hearing officer affirmed his earlier decision, and Passaro again filed administrative appeals that were denied. Passaro returned to state court, which this time affirmed. Passaro then appealed to Virginia's intermediate appellate court, which affirmed. Passaro v. Virginia Dep't of State Police, 796 S.E.2d 439 (Va. Ct. App. 2017). His state-court appeals finally concluded in May 2018, when the Virginia Supreme Court declined Passaro's request for rehearing.

         In November 2016, while those appeals were ongoing, Passaro brought the instant action in Virginia state court against the Commonwealth. His complaint asserted "unlawful discrimination, harassment and retaliation," as well as improper denials of his "requests for reasonable accommodations." J.A. 13. The Commonwealth timely removed the case to federal ...


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