                                                          NOT PRECEDENTIAL


                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            _____________

                                No. 15-2639
                               _____________


                             VINCENT TIRPAK,

                                                       Appellant

                                      v.

STATE OF DELWARE DEPARTMENT OF TECHNOLOGY AND INFORMATION;
    JAMES H. SILLS, III, individually; MICHAEL J. MYRON, individually;
       LI WEN LIN, individually; MATTHEW PAYNE, individually; and
                      KIM THORNTON, individually


                _____________________________________

            On Appeal from the United States District Court for the
                              District of Delaware
                     (District Court No.: 1-13-cv-00346)
                 District Judge: Honorable Gregory M. Sleet
                _____________________________________


                 Submitted under Third Circuit LAR 34.1(a)
                             on April 8, 2016

                             (Filed: May 3, 2016)


           Before: FISHER, COWEN and RENDELL, Circuit Judges.



                                ____________
                                      O P I N I O N*
                                      ____________

RENDELL, Circuit Judge:

       Vincent Tirpak, a former employee of the Delaware Department of Technology

and Information (“DTI”), appeals the District Court’s grant of summary judgment to DTI

and the following DTI employees: James H. Sills, III, Michael J. Myron, Li Wen Lin,

Matthew Payne, and Kim Thornton (“DTI employee-defendants”). Tirpak claimed that

these defendants violated the Americans with Disabilities Act (“ADA”) and the Family

Medical Leave Act (“FMLA”). We will affirm the District Court’s ruling.1

       Because we write primarily for the parties, who are familiar with the facts of this

case, we set forth only a brief summary here. Tirpak, who suffers from attention deficit

disorder and depression, started working for DTI in 2006 as a Project Management

Specialist. From January 24, 2011, to February 2, 2011, he took leave from DTI under the

FMLA. Just over a month after he returned, DTI placed him on a Performance

Improvement Plan (“PIP”). Over five months later, on August 18, 2011, DTI terminated

his employment, citing his inability to meet the expectations outlined in the PIP.

       On March 1, 2013, Tirpak filed this lawsuit. He alleged that the DTI employee-

defendants violated his procedural due process rights in terminating him (Count I). On

appeal, however, he has conceded that the District Court properly rejected this claim. He


*
  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
  The District Court had jurisdiction under 28 U.S.C. § 1331, and we have jurisdiction
under 28 U.S.C. § 1291.
                                             2
also alleged that DTI itself discriminated against him because of his disability and denied

him reasonable accommodations in violation of the ADA (Counts 2 and 3), and that it

retaliated against him for taking FMLA leave (Count 4).

       The defendants moved for summary judgment. DTI argued that Tirpak’s ADA and

FMLA claims against it were barred because it was a state agency and was thus immune

from suit under the Eleventh Amendment. In response, citing Ex parte Young, 209 U.S.

123 (1908), Tirpak argued that these claims were permitted under the Eleventh

Amendment because they sought injunctive relief and were against not DTI but rather the

DTI employee-defendants. See Koslow v. Pennsylvania, 302 F.3d 161, 168 (3d Cir. 2002)

(“[A] person seeking purely prospective relief against state officials for ongoing

violations of federal law may sue under the ‘legal fiction’ of Ex parte Young . . . .”).

       In granting summary judgment to the defendants, the District Court first concluded

that the Eleventh Amendment barred Tirpak’s ADA and FMLA claims insofar as those

claims were against DTI itself. DTI enjoys sovereign immunity unless it has consented to

the suit or Congress has abrogated its immunity for the claim at issue. Pennhurst State

Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984). As the District Court determined,

neither exception applied to these claims. See Bd. of Trs. of Univ. of Ala. v. Garrett, 531

U.S. 356, 374 (2001) (holding that Congress lacked authority to abrogate states’

sovereign immunity for claims asserted under Title I of the ADA); Coleman v. Court of

Appeals of Md., 132 S. Ct. 1327, 1338 (2012) (holding that Congress lacked authority to

abrogate states’ sovereign immunity for claims relating to FMLA’s self-care provision).



                                              3
       The District Court then rejected Tirpak’s Ex parte Young argument, concluding

that he had failed in several ways to properly plead his ADA and FMLA claims against

the DTI employee-defendants. It pointed out that Tirpak pleaded these claims only

“against Defendant Department of Technology and Information” and that, by contrast, he

pleaded his procedural due process claim against the DTI employee-defendants. (App. 7.)

It also highlighted how, in pleading the ADA and FMLA claims, Tirpak named DTI as

the singular “Defendant.” (Id.) It also concluded that, even if Tirpak had pleaded these

claims against the DTI employee-defendants and not just DTI itself, he still failed to

plead plausible ADA and FMLA claims against them because he specified in his

complaint that he was suing them each “individually” rather than in their official

capacity. See Koslow, 302 F.3d at 178 (allowing ADA claim against a state official, “but

only in his representative—not his individual—capacity”); Diaz v. Mich. Dep’t of Corr.,

703 F.3d 956, 964 (6th Cir. 2013) (stating that Eleventh Amendment does not bar FMLA

claim for prospective relief against “state officials in their official capacity”). The District

Court then declined to allow Tirpak to amend his complaint to cure these defects, noting

that he had never requested leave to amend his complaint. See Fletcher-Harlee Corp. v.

Pote Concrete Contractors, Inc., 482 F.3d 247, 252–53 (3d Cir. 2007) (establishing that

district courts must sua sponte grant plaintiffs leave to amend only in civil rights cases).

       We find the District Court’s analysis to be correct in all respects and will therefore

affirm its grant of summary judgment to DTI and the DTI employee-defendants.




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