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Sovereign immunity does not apply in retaliation suit: Court


In a ruling that cites 13th-century British law and Alexander Hamilton, a federal appeals court has reinstated a discrimination and retaliation lawsuit filed by a local government employee who was fired six months before her retirement, stating the agency cannot rely on state sovereign immunity to win the case’s dismissal.

Kathie Cutrer worked for the Fort Worth, Texas-based Tarrant County Workforce Development Board, which does business as Workforce Solutions and is the “bottom tier” of the Texas Workforce Commission workforce development system, for 17 years, according to the ruling by the 5th U.S. Circuit Court of Appeals in New Orleans in Kathie Cutrer v. Tarrant County Local Workforce Development Board et al.

The ruling was issued on Friday, and revised Monday.

In August 2000, Ms. Cutrer was in a car accident, with injuries including a broken neck that required multiple surgeries and a double spinal fusion, according to the ruling.

For a time, Workforce Solutions accommodated Ms. Cutrer’s “well-documented” disabilities, according to the ruling, but stopped doing so in 2016. The same year, Workforce Solutions and Ms. Cutrer’s supervisor allegedly engaged in various acts of discrimination, according to the ruling.

Workforce Solutions then fired Ms. Cutrer, although the parties agreed in writing to settle her 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,” said the ruling.

Ms. Cutrer filed suit in U.S. District Court in Fort Worth, charging discrimination, retaliation, post-employment retaliation under the Americans with Disabilities Act and FCRA violations.

Workforce Solutions moved to dismiss the case on the ground it enjoyed sovereign immunity, and the District Court granted the motion.

Its ruling was overturned in by a unanimous three-judge appeals court panel.

“Sovereign immunity has ancient origins,” said the ruling, in referring to 13th-century British law and discussing, in part, Alexander Hamilton’s views on the subject.

However, it said, an 1890 federal court ruling “makes this an open-and-shut case.” Because Tarrant County and the cities of Arlington and Forth Worth, whose officials had agreed to create the Tarrant County board, “are not the State of Texas, they obviously cannot confer the State’s sovereign immunity upon a board by interlocal agreement. They can’t give what they don’t have,” said the court.

“We suppose it’s possible that judgments against such a local entity could implicate the State’s treasury. But it’s not possible for such a local entity to hide behind sovereign immunity when its briefs and the record reveal no basis for it. If Workforce Solutions wants to be treated like the State of Texas, it must explain why it is (for present purposes) the State of Texas.”

Ms. Cutrer’s attorney, Joshua S. Graham of Joshua Graham & Associates PLLC, said in a statement: “For decades the district courts ruled that Local Workforce Development Boards were immune from suit in federal court. That precedent was mostly set in cases where the plaintiff” was representing themselves. “The takeaway in this case is that cities and counties cannot use local boards to create immunity protection in both state and federal court.

“The court of appeals did the right thing and saw through the bureaucratic shell game that Tarrant County Workforce Solutions was playing. Now Tarrant County Workforce Solutions needs to do the right thing and pay Ms. Cutrer for its unlawful discrimination,” said the statement.

Defense attorneys in the case had no comment or could not be reached

The Florida Supreme Court heard arguments in August in a dispute about how the state’s sovereign immunity law should be applied in a case filed against the School Board of Broward County by parents and victims of the Feb. 14, 2018, mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida. 



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