The NJ Supreme Court recently ruled that the New Jersey State Police’s failure to assert a sovereign immunity defense during its trial on an Americans with Disabilities Act claim does not constitute a waiver of sovereign immunity.
This case was brought by Brian Royster, a state trooper who suffered from ulcerative colitis. His condition required that he have immediate access to a bathroom while on the job. After returning from medical leave for treatment of his condition, his department assigned him to conduct surveillance from a car. He repeatedly asked to be moved to an assignment that offered access to a restroom, but he remained on the surveillance assignment for seven months.
Royster filed suit against the state police, asserting, among other claims, that it failed to make reasonable accommodation for his medical condition in violation of the ADA and the NJLAD, and for retaliation under the ADA, NJLAD, and the New Jersey Conscientious Employee Protection Act (“CEPA”). The state trial court dismissed several claims, leaving only the CEPA retaliation and the ADA failure-to-accommodate claim for trial. The jury awarded the employee $500,000 in damages on the ADA claim.
The state then moved for judgment notwithstanding the verdict (“JNOV”), asserting for the first time that the trial court lacked subject matter jurisdiction over the ADA claim because the police, as a state actor, had sovereign immunity. The employee countered that it was unfair to allow the police to raise a sovereign immunity defense after the jury’s verdict, and asked the trial court to retroactively convert the remaining ADA claim to an NJLAD claim since the claims and arguments under both statutes were identical. The trial court denied the employee’s request, and also denied the state police’s motion for JNOV, holding that the state police were estopped from asserting lack of jurisdiction after waiting over seven years and the completion of trial. The state police appealed and the Appellate Division reversed, holding that because the state’s sovereign immunity extended to the state police, the sovereign immunity defense could be raised at any time, and the police had not waived sovereign immunity through its litigation conduct. The Supreme Court then granted the employee’s petition for certification, and considered whether the state police were entitled to sovereign immunity on Royster’s ADA claim, and whether it had waived that immunity.
The Supreme Court held that it could not nullify sovereign immunity for federal claims under the ADA, regardless of the state’s delay in raising the defense. The state police were an arm of the state, and because the state legislature had not consented to be sued under the ADA, the police enjoyed sovereign immunity from the ADA claim. Nor did the state police waive sovereign immunity through its litigation conduct. Although a state that is involuntarily brought into litigation in state court can waive its immunity by removing the case to federal court, New Jersey courts have never declared that the state may waive its immunity from suit in state court through litigation conduct. The Court also found that the state police could not be estopped from raising its sovereign immunity defense, because it never misrepresented its status as a state actor, nor affirmatively represented that it planned to waive immunity simply by defending the claims against it.
The Court found that the employee’s NJLAD claim for failure to accommodate, under which the state police did not have sovereign immunity, was improperly dismissed. The trial court had found that a prima facie case under the two statutes were identical, yet separated the two claims when the state police moved for a directed verdict. The trial court then applied CEPA’s waiver provision to both the NJLAD retaliation and failure to accommodate claims. However, the CEPA waiver provision applied only to those causes of action requiring a finding of retaliatory conduct that would be actionable under CEPA. The CEPA waiver did not apply to the NJLAD claim, which was premised on different facts.
The NJLAD failure-to-accommodate claim was identical to the ADA claim. Because there was sufficient evidence to support Royster’s ADA claim, the Court found that the NJLAD claim should have survived the directed verdict motion. Although the employee had acquiesced to dismissal of the NJLAD claim, which was not precluded by sovereign immunity, the court could not ignore that the dismissal was mistaken. The state police’s belated assertion of sovereign immunity was not made in bad faith, but the interests of justice required reinstatement of the NJLAD failure to accommodate claim. Because the jury awarded $500,000 for the ADA failure to accommodate claim, the court found that it would have given the same award for the parallel NJLAD claim had it not been dismissed, and so it remanded to the trial court to mold the jury’s ADA award into an NJLAD award.
This case is surprising in that the court allowed a defendant to assert a sovereign immunity defense after the jury returned a verdict. We are pleased that that the Court found a way to uphold the jury’s verdict by fairly molding the verdict. Justice appears to have been served!