Debra R. Thompson v. State of Delaware Department of Services for Children, Youth

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 20-3111
_____________
DEBRA R. THOMPSON,
Appellant
v.
STATE OF DELAWARE DEPARTMENT OF SERVICES
FOR CHILDREN, YOUTH AND THEIR FAMILIES;
ALISON MCGONIGAL; KARRYL MCMANUS;
ASSISTANT CLERK ANGELA PORTER;
JOSETTE MANNING
____________
On Appeal from the United States District Court
for the District of Delaware
(D.C. No. 1:18-cv-01236)
District Judge: Honorable Maryellen Noreika
_____________
Argued: September 24, 2021
_____________
Before: CHAGARES, Chief Judge, HARDIMAN, and
MATEY, Circuit Judges

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(Opinion filed: August 11, 2022)
Victor F. Battaglia [ARGUED]
Robert D. Goldberg
Biggs & Battaglia
921 Orange Street
P.O. Box 1489
Wilmington, DE 19899
Counsel for Appellant
Ryan T. Costa [ARGUED]
Office of Attorney General of Delaware
Delaware Department of Justice
6th Floor
820 North French Street
Carvel Office Building
Wilmington, DE 19801
Counsel for Appellees
_____________
OPINION OF THE COURT
_____________
CHAGARES, Chief Judge.
Debra Thompson brought claims under 42 U.S.C. §
1983 for violations of her right to due process and under state
law against the State of Delaware Department of Services for
Children, Youth and their Families (“DSCYF”) and several
individual defendants after Thompson was demoted and

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eventually terminated from DSCYF. The District Court
dismissed Thompson’s federal procedural due process claims
on the ground that, as a former probationary employee at
DSCYF, Thompson did not have a protected property interest
in her employment. The District Court also dismissed
Thompson’s claim brought pursuant to the Delaware
Whistleblowers’ Protection Act (“WPA”) on the ground that
the Eleventh Amendment precluded the claim. The District
Court declined to exercise supplemental jurisdiction over
Thompson’s remaining state law claims, and Thompson does
not challenge this discretionary ruling. Thompson appeals,
focusing mainly upon her procedural due process claims. An
issue central to this appeal is whether probationary employees
working for the State of Delaware have a constitutionally
protected property right in continued employment or in the
retention of a particular position or rank for the purpose of
federal procedural due process. We hold that they do not and
conclude that Thompson’s due process claim was properly
dismissed. In addition, we hold that the District Court properly
dismissed Thompson’s WPA claim because the WPA does not
evince a clear intention by the State of Delaware to subject
itself to suit in federal court. We will thus affirm the District
Court’s order.
I.
In the spring of 2016, Thompson — then employed as
the Development Coach for the Professional Development
Center at the University of Delaware — applied for an
advertised open position as the Education Unit Supervisor
(“Education Supervisor”) for DSCYF. The defendants
informed Thompson during her interview for the position that
the prior Education Supervisor, Angela Porter, had been

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terminated for personal reasons. DSCYF offered Thompson
the position, and in July 2016, Thompson left her job at the
University of Delaware to take the Education Supervisor
position with a one-year probationary period.
Thompson understood at the time she was hired that
DSCYF “had concerns that the education side of the
Department was weak and not up to date on current rules, laws
and process” and wanted Thompson to address these problems.
Appendix (“App.”) 22 ¶ 13. She alleges that she upgraded
systems and received positive feedback for her work.
Thompson first learned in October 2016 that Porter had
successfully contested her termination and that, as a result, the
Delaware Merit Employee Relations Board had ordered that
Porter be reinstated. Thompson expressed concern about the
security of her position and was subsequently assured in
writing that Porter would be filling a new position titled,
“Transition Coordinator.” Porter returned to DSCYF as the
Transition Coordinator. But on February 17, 2017, defendant
Alison McGonigal — Thompson’s supervisor — informed
Thompson that Porter would be reinstated as Education
Supervisor in thirty days and that Thompson would become the
Transition Coordinator instead. DSCYF did not provide
Thompson the opportunity to pursue a grievance with respect
to the change in her position. Thompson alleges that, upon
information and belief, the defendants “disseminated false and
misleading information concerning [Thompson’s] professional
reputation and abilities,” because she began hearing from co-

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workers that she was being demoted for poor performance.1
App. 25 ¶ 25.
Between approximately March 20 and May 19, 2017,
Thompson worked as the Transition Coordinator. She alleges
that the defendants, including Porter, thwarted her attempts to
fulfill the duties of that position. Thompson was hospitalized
for emergency surgery in May 2017 and could not return to
work for several months.
Thompson’s one-year probationary period was set to
end in July 2017. But, unbeknownst to Thompson, the
defendants requested of the Office of Management and Budget
an extension of her probationary period on June 5, 2017.2 The
request stated that in January 2017, Thompson “received a six
month probationary review and was placed on a Performance
Improvement Plan (PIP).” App. 53. The request further stated
that Thompson had been removed from the Education
Supervisor position “through no fault of her own” and that her
direct supervisor was “unable to effectively measure
performance.” App. 53. Finally, the request noted “continued
concerns regarding quality of work and interpersonal skills,
and several absences” by Thompson. App. 53. According to
Thompson, these statements are false. The defendants’
extension request was approved, and Thompson’s
probationary period was extended.
1 Thompson’s February 2017 written performance evaluation
stated that her performance “Meets Expectations.” App. 23 ¶
19; App. 76.
2 Thompson challenges the validity and authenticity of this
request. Her challenge is addressed infra.

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Thompson returned to work in October 2017 after
leaving for her surgery in May. Around this time, DSCYF
demoted Thompson to a teaching position at a reduced salary,
which gave Porter supervisory authority over Thompson.
Thompson was not afforded an opportunity to contest the
demotion. Thompson also lacked the necessary special
education certifications for her new teaching position, and the
defendants continually requested that she obtain those
certifications. She requested accommodations, waivers, or
exemptions –– which she contends were commonly afforded
to teachers unable to obtain the certifications –– all to no avail.
Porter recommended in April 2018 that Thompson be
terminated for failure to obtain the special education
certifications that were required for her teaching position.
Thompson concedes in passing that she could be terminated
from the new teaching position “without cause under a
collective bargaining agreement.” Thompson Br. 12, 37.
Thompson nevertheless filed a grievance claim. The hearing
on this claim occurred on April 24, 2018, with Porter as the
Hearing Officer. At the hearing, Porter determined that
Thompson would have until June 30, 2018, to obtain the
necessary special education credentials. Thompson was
unable to do so and was terminated from DSCYF on July 2,
2018.
Thompson filed a lawsuit against DSCYF, Porter, and
several other individual defendants. She claimed that her
demotions and resulting termination from DSCYF violated
both federal and state law. The defendants moved to dismiss
for failure to state a claim, which the District Court granted.
Thompson filed an amended complaint in which she reasserted
most of her original claims and added factual allegations.

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Counts I through V of the amended complaint assert federal
due process violations under § 1983 based upon Thompson’s
assertion that her employment as a probationary employee in
Delaware’s merit system was subject to the protections of the
Fourteenth Amendment. The remaining counts are state-law
claims, including Count IX, which alleges violations under the
WPA. The defendants moved to dismiss the amended
complaint. The District Court granted the motion, holding that
because Thompson was a probationary employee under
Delaware Merit Rule 9.2, she lacked a property interest in her
continued employment at DSCYF for purposes of a procedural
due process claim. The court also dismissed Thompson’s
WPA claim on the ground that the State of Delaware had not
consented to be sued in federal court under the WPA.
Thompson timely appealed.
II.
The District Court had jurisdiction under 28 U.S.C.
§§ 1331, 1343, and 1367. We have jurisdiction under 28
U.S.C. § 1291. We review de novo the grant of a motion to
dismiss for failure to state a claim. Klotz v. Celentano
Stadtmauer & Walentowicz LLP, 991 F.3d 458, 462 (3d Cir.
2021).
To survive a motion to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6), a plaintiff must allege “enough
facts to state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). We accept
as true all factual matters Thompson alleges, but her amended
complaint cannot survive unless the facts it recites are enough
to state plausible grounds for relief. See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). We disregard legal conclusions and

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recitals of the elements of a cause of action that are supported
only by mere conclusory statements. Oakwood Lab’ys LLC v.
Thanoo, 999 F.3d 892, 904 (3d Cir. 2021).
III.
Thompson challenges the District Court’s dismissal of
her procedural due process claim. Central to this challenge is
the issue of whether Delaware state probationary employees
have a constitutionally protected property right in continued
employment or in the retention of a particular position or rank.
We hold that they do not. This is fatal to Thompson’s claim,
as discussed more fully below.
A.
Thompson contends that she was deprived of procedural
due process when she was demoted and ultimately terminated
by DSCYF. To state a claim under § 1983 for a violation of
procedural due process rights, Thompson must allege that she
was deprived of an individual interest that is “encompassed
within the Fourteenth Amendment’s protection of life, liberty,
or property” and that the available procedures did not provide
due process of law. In re Energy Future Holdings Corp., 949
F.3d 806, 822 (3d Cir. 2020) (quoting Hill v. Borough of
Kutztown, 455 F.3d 225, 234 (3d Cir. 2006)). We address in
turn whether Thompson had a protected property interest in her
continued employment and in retaining a particular position at
DSCYF.

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1.
With respect to termination, a state employee possesses
a constitutionally protected property right in her continued
employment and is entitled to procedural due process if the
employee “has a legitimate claim of entitlement to continued
employment absent sufficient cause for discharge.” Goss v.
Lopez, 419 U.S. 565, 573 (1975). A state employee will thus
have a protected property interest if she can only be terminated
for cause. See Richardson v. Felix, 856 F.2d 505, 509 (3d Cir.
1988) (“The hallmark of a constitutionally protected property
interest is an individual entitlement that cannot be removed
except for cause.” (cleaned up)). The issue of whether such an
employee has a legitimate claim of entitlement to be retained
is determined by state law and rules. Goss, 419 U.S. at 573.
Delaware “law provides a heavy presumption that a
contract for employment, unless otherwise expressly stated, is
at-will in nature, with duration indefinite.” Merrill v. Crothall-
Am., Inc., 606 A.2d 96, 102 (Del. 1992). This means that “an
employee at-will can be terminated for any reason, with or
without cause and at any time.” Lord v. Souder, 748 A.2d 393,
398 (Del. 2000); see Dewitt v. Penn-Del Directory Corp., 106
F.3d 514, 524 (3d Cir. 1997) (“Because [the employee] was an
at-will employee, her employer could terminate her
employment, for any reason and on any date the employer
chose.”). We hold –– notwithstanding her arguments
considered in part III.B. infra –– that the heavy presumption
that Thompson was an employee at will applies in this case,
and this fact is “fatal” to her claim that she possesses a property
interest in her continued employment. Thomas v. Town of
Hammonton, 351 F.3d 108, 113 (3d Cir. 2003); see also Bishop
v. Wood, 426 U.S. 341, 345 n.8 (1976) (holding that if an

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employee “held [her] position at the will and pleasure” of the
government, this “necessarily establishes that [the employee]
had [n]o property interest” (citation omitted)).
Delaware rules –– particularly those pertaining to
probationary employees –– similarly do not support
Thompson’s claim that she has a legitimate claim of
entitlement to her continued employment. The Delaware State
Merit Rules (the “Merit Rules”) govern state employees. See
Del. Code Ann. tit. 29 § 5902 (“The general purpose of this
chapter is to establish . . . a system of personnel administration
based on merit principles and scientific methods governing the
employees of the State.”). Delaware law provides that the
Merit Rules “shall provide for a period of probation . . . during
which period a probationer may be discharged or reduced in
class or rank.” Id. § 5922(a). Merit Rule 9.2, which governs
the probationary period in part, provides that employees “may
be dismissed at any time during the initial probationary period”
and that, with one exception not applicable here, “probationary
employees may not appeal the decision.”3 Rule 9.2 creates a
group of employees who may be terminated at any time during
the probationary period and “may not appeal the decision” to
dismiss them.4 “Probationary” is thus synonymous with “at-
3 Merit Rule 9.2 creates an exception for violations of Chapter
2, which provides that “[d]iscrimination in any human resource
action covered by these rules or Merit system law because of
race, color, national origin, sex, religion, age, disability, sexual
orientation, gender identity, genetic information or other non-
merit factors is prohibited.”
4 Granted, Rule 9.2 exempts violations of Chapter 2 from this
general rule. Thompson contends that, taken together, Merit

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Rules Chapters 9 and 2 create for-cause protection because
Chapter 2 prohibits discrimination based on “other non-merit
factors” such that probationary employees can only be
terminated based on “merit” factors. She also cites Kopicko v.
State Dep’t of Servs. for Child., Youth & Their Fams., 805
A.2d 877 (Del. 2002) for this proposition. Thompson’s
argument is unconvincing.
The court in Kopicko did not address the status of probationary
employees for the purpose of federal due process protections.
Kopicko concerned a probationary state employee who
received poor performance reviews during her probationary
period and was dismissed. Id. at 877–78. Kopicko filed a
lawsuit on the ground that she was dismissed for
discriminatory reasons in violation of the Merit Rules, and the
court held that if Kopicko believed she was terminated for
discriminatory reasons, she could have filed a grievance under
Chapter 2. Id. at 878–79. Kopicko merely confirms that a
probationary employee may appeal an adverse employment
action if the action was based on discrimination.
More generally, it is true that Chapter 2 creates some
procedural protection for at-will employees. But this
protection does not change the status of at-will employees for
the purpose of federal due process. This is because substantive
rights and procedural protections are distinct, and protected
“‘[p]roperty’ cannot be defined by the procedures provided for
its deprivation any more than can life or liberty.” Thomas, 351
F.3d at 113 (quoting Cleveland Bd. of Educ. v. Loudermill, 470
U.S. 532, 541 (1985)); see also id. (“The fact that state law may
grant procedural protections to an at-will employee does not
transform his or her interest in continued employment into a

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will” under the Merit Rules. See Lord, 748 A.2d at 398. As a
result, we hold that Delaware state probationary employees do
not have a constitutionally protected property right to
continued employment for purposes of federal procedural due
process.
We conclude that Thompson had no legitimate claim of
entitlement to continued employment under Delaware law and
rules as she was terminable at will by DSCYF. She
accordingly lacked a protected property interest in her
continued employment. See Bishop, 426 U.S. at 346 n.8; cf.
Jones v. City of Boston., 752 F.3d 38, 56 (1st Cir. 2014) (“We
have previously observed that probationary [state] employees
in Massachusetts do not have a property interest in their
continued employment.”); Wheaton v. Webb-Petett, 931 F.2d
613, 619 (9th Cir. 1991) (“Typically, permanent and classified
employees have been held to have property
interests, while probationary and nonclassified employees
have not.” (citation omitted)); Blanton v. Griel Mem’l
Psychiatric Hosp., 758 F.2d 1540, 1544 (11th Cir.
1985) (“Because the plaintiff could be discharged ‘at the will’
of his employer during his probationary period, he had no valid
expectation of continued employment during
this probationary period.”).
2.
We turn to Thompson’s claim that her demotion
violated her right to procedural due process. Where a
property interest protected by the Due Process Clause.”).
Chapter 2 does not provide for-cause protection to
probationary employees.

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plaintiff’s “claim of a property interest is based on what [s]he
characterizes as [her] demotion,” we similarly examine the
state law and rules to determine whether she had a “legitimate
claim of entitlement to the retention of” her position or rank,
as “property interests are created and defined by state law.”
Clark v. Twp. of Falls, 890 F.2d 611, 617 (3d Cir. 1989);
cf. Dee v. Borough of Dunmore, 549 F.3d 225, 229 (3d Cir.
2008) (“[The plaintiff] defines his asserted property interest as
the interest ‘in not being suspended without just cause.’ To
determine whether such an interest exists, we will first look to
state law.” (citation omitted)). Here, the relevant Delaware
statutes and regulations make clear that Thompson did not have
a legitimate claim of entitlement to the retention of her duties
in a particular position or rank. Delaware law provides that the
merit rules “shall provide for a period of probation before
appointment or promotion is made complete and during which
period a probationer may be discharged or reduced in class or
rank.” Del. Code Ann. tit. 29 § 5922(a) (emphasis added).
Merit Rule 9.2 in turn provides that employees “may be
dismissed at any time during the initial probationary period.”
While the Merit Rules only mention dismissal, the greater
adverse employment action (dismissal) includes the lesser
(demotion). This is especially true given the language of
section 5922(a). We therefore hold that Thompson did not
have a property interest in the retention of a particular rank or
position during her probationary period.
B.
Thompson raises several arguments in opposition.
First, she argues that section 5922 creates an entitlement to
continued employment for probationary employees because,
read as a whole, it provides that a probationary employee may

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be discharged or demoted based on unsatisfactory work.
Specifically, Thompson notes that section 5922 entitles
probationary employees to “receive an appropriate
performance report . . . during the probationary period,
providing warning of any poor performance,” Del. Code Ann.
tit. 29, § 5922(a), and that a probationary employee shall be
deemed permanent if the employee’s services are satisfactory.
Contrary to Thompson’s interpretation, section 5922
does not create an entitlement to continued employment for
probationary employees. Delaware law presumes that an
employee is at-will unless expressly stated. Rizzitiello v.
McDonald’s Corp., 868 A.2d 825, 830 (Del. 2005). Section
5922 does not expressly provide for-cause protection for
probationary employees, and the portions of the statute
Thompson points to do not provide for-cause protection. A
requirement that probationary employees receive performance
reports is not an express statement of for-cause employment.
Additionally, section 5922(b), which provides that
probationary employees shall be deemed permanent if their
services are satisfactory, merely explains how a probationary
employee may become a permanent employee; it does not
provide that probationary employees may only be demoted or
terminated for cause. See Del. Code Ann. tit. 29, § 5922(b).
Thus, section 5922 does not create an entitlement to continued
employment for probationary employees.5
5 Thompson cites Perri v. Aytch, 724 F.2d 362 (3d Cir. 1983),
for the proposition that this Court has found a property right in
probationary employment. But in Perri, the Pennsylvania
regulations governing the probationary period “specifically
provided that dismissal during the probationary period shall be
‘for just cause only.’” Id. at 365 (citation omitted). The

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Thompson also argues that Merit Rule 12.1, which
provides that “[d]isciplinary measures up to and including
dismissal shall be taken only for just cause,” applies to
probationary employees. But this clause cannot be applicable
to the dismissal of probationary employees because, pursuant
to Merit Rule 9.2, probationary employees “may be dismissed
at any time” and, with the exception of Chapter 2, “may not
appeal the decision.” Thompson provides no reason why Merit
Rule 12 applies to probationary employees, particularly given
the contrasting language in Merit Rule 9.2 that explicitly
applies to probationary employees.
Thompson next argues that her employment status was
not at-will because of an agreement between the parties.
Thompson contends that the state maintains a “clear and
longstanding policy and practice” to discharge probationary
employees only for cause. Thompson Br. 12, 33. Thompson
cites as evidence the fact that satisfactory work and merit are
at the core of section 5922, that section 5922 requires warning
of poor performance, and that the state initially reacted to
Porter’s reinstatement by assuring Thompson that her job was
safe.
A property interest must arise from either the
“circumstances of . . . service” or the “mutually explicit
understandings that support [the] claim of entitlement to the
benefit.” Perry v. Sindermann, 408 U.S. 593, 601–02 (1972).
But “[t]he Supreme Court has set a high bar for how explicit
an understanding must be in order to support a property
interest.” McKinney v. Univ. of Pittsburgh, 915 F.3d 956, 960
statutes and rules at issue in this case provide no such
guarantee.

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(3d Cir. 2019) (quotation marks omitted). It must be “clear that
the expectation was mutual.” Id. at 961. When the government
has broad discretion to terminate the benefit, or when the scope
of the government’s discretion is ambiguous, that is “too
slender a reed to support the weight of a constitutional right.”
Tundo v. Cnty of Passaic, 923 F.3d 283, 288 (3d Cir. 2019)
(quoting McKinney, 915 F.3d at 963).
The amended complaint does not allege a mutual
understanding that Thompson was a for-cause employee. It
alleges that Thompson was hired as a probationary employee
which, as explained above, essentially means that she was an
at-will employee. The defendants took no action to alter this
understanding. Any alleged custom and practice maintained
by the defendants, even if true, do not amount to an “explicit
understanding” of for-cause protection given the plain
language of Merit Rule 9.2.
Additionally, Thompson argues that, even if her
probationary employment status was at-will, the at-will status
was altered under Delaware contract law principles creating
exceptions to at-will employment. She points to two possible
exceptions to at-will employment: (1) a breach of the implied
covenant of good faith and fair dealing; and (2) promissory
estoppel. But Delaware’s exceptions to at-will employment do
not transform at-will employment into for-cause employment.
See Thomas, 351 F.3d at 113. In E.I. DuPont de Nemours &
Co. v. Pressman, 679 A.2d 436 (Del. 1996), the Delaware
Supreme Court made clear that, in the context of the covenant
of good faith and fair dealing, “[s]ince an assurance of
continued employment is antithetical to at-will employment,
no legally cognizable harm arises solely from the termination
itself.” Id. at 444 (emphasis added). The harm in Pressman

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derived not from the termination but from the employer’s
creation of false grounds and manufacturing of a record to
establish a fictitious basis for the employee’s termination. Id.
As a result, the court held that the employee was entitled to
recover damages for wrongful termination based on fictitious
grounds. See id. at 444–48. The court’s holding did not alter
the employee’s status as an at-will employee. Nor will
Pressman transform Thompson’s employment to for cause.
Indeed, the court determined that “[s]ince indefinite
employment is not part of the bargain in an employment
contract that does not explicitly so provide, neither party can
point to the duty of good faith and fair dealing to support a
requirement of good cause for termination.” Id. at 449. The
court in Lord v. Souder, 748 A.2d 393 (Del. 2000) provided
similar analysis for promissory estoppel. While promissory
estoppel was a basis of recovery by an at-will employee for
wrongful discharge, the court held that “[n]othing about the at-
will doctrine suggests that it does not coexist with numerous
modifications and exceptions imposed by law, including the
law of promissory estoppel.” Id. at 399 (quoting Foote v.
Simmonds Precision Prods. Co., 613 A.2d 1277, 1280 (Vt.
1992) (emphasis added)). Thus, even if Thompson could
establish promissory estoppel or a breach of the implied
covenant of good faith and fair dealing, neither alters her status
as an at-will employee for the purpose of federal procedural
due process. See id.; Pressman, 679 A.2d at 444.
Finally, Thompson argues that the District Court erred
in accepting the validity of the defendants’ extension of her
one-year probationary period. The defendants relied upon an
extension request and approval form as part of their motion to
dismiss. Thompson contends that, without discovery, there is
no way to determine whether the extension request is authentic

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or whether the defendants submitted the extension request
when they claim they did.
This appeal appears to be the first time Thompson
directly challenges the authenticity of the extension request
and approval. Her amended complaint alleges that “[o]n or
about June 5, 2017, [the defendants] . . . applied to have her
one year probation extended.” App. 26. The amended
complaint then alleges that “[b]ecause there was no valid basis
for the extension[,] it [was] without force or effect.” App. 26
¶ 32. In her brief in opposition to the defendants’ motion to
dismiss, Thompson argued that she “must be permitted to
discover if [the defendants] knowingly fabricated the basis for
[the extension request] and who made the decision to extend.”
Docket No. 37 at 5. But Thompson did not directly question
the authenticity of the extension in her briefing on the motion
to dismiss. It was only in her opening appellate brief that
Thompson first seriously questioned the authenticity and
timeliness of the document, and this argument is therefore
forfeited. See Del. Nation v. Pennsylvania, 446 F.3d 410, 416
(3d Cir. 2006) (“Absent exceptional circumstances, this Court
will not consider issues raised for the first time on appeal.”).6
6 In any case, Thompson has supplied no reason to doubt the
validity of the request for, or grant of, an extension except to
argue that it was done without notice. But the Merit Rules do
not contain a notice requirement. Merit Rule 9.1 provides that,
“[u]pon the [Department of Human Resources] Secretary’s
approval, probationary periods may be extended.” The
document submitted by the defendants is a letter request for
extension of the probationary period to Human Resources, and
it is signed and approved by the Acting Director of the Office
of Management and Budget, Human Resources Management.

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* * * * *
Delaware law and rules provide that probationary state
workers may be discharged or reduced in position or rank
without cause. We hold that Thompson did not have a
constitutionally protected property right in her continued
employment or in her retention in a particular position or rank
for purposes of federal due process protection.
IV.
Thompson also challenges the District Court’s
dismissal of her WPA claim.7 The court dismissed that claim
pursuant to the Eleventh Amendment on the ground that the
State of Delaware has not consented to be sued in federal court
under the WPA. Thompson argues that the District Court acted
prematurely because discovery and a fuller record were
necessary to consider this claim. We disagree.
As a result, even if we were to consider this argument, we
would have no reason to doubt the document’s validity or
authenticity.
7 It is not clear from the amended complaint whether
Thompson also asserts her WPA claim against the individual
defendants. To the extent she does, it must be dismissed.
Delaware courts have held that individual state officials and
employees cannot be sued under the WPA. See, e.g., Postell
v. Eggers, No. Civ. 06C-11-021 (JTV), 2008 WL 134830, at
*5 (Del. Super. Ct. Jan. 15, 2008) (citing Tomei v. Sharp, 902
A.2d 757, 767 (Del. Super. Ct. 2006), aff’d, 918 A.2d 1171
(Del. 2007)).

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Our Constitution created a system of “‘dual sovereignty
between the States and the Federal Government,’” and “[a]n
important feature of this sovereignty is state sovereign
immunity.” Lombardo v. Pa., Dep’t of Pub. Welfare, 540 F.3d
190, 194 (3d Cir. 2008) (quoting Gregory v. Ashcroft, 501 U.S.
452, 457 (1991)). The Eleventh Amendment of the
Constitution provides: “The Judicial power of the United
States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or Subjects
of any Foreign State.” U.S. Const. amend. XI. In Hans v.
Louisiana, 134 U.S. 1, 10 (1890), the Supreme Court extended
the Eleventh Amendment’s reach to suits by in-state plaintiffs,
thus barring all private suits against non-consenting States in
federal court. States thus “possess immunity from suit in
the federal courts, also known as Eleventh Amendment
immunity.” Lombardo, 540 F.3d at 194–95.
A State’s immunity from suit is not absolute. Congress
may abrogate a State’s sovereign immunity “in the exercise of
its power to enforce the Fourteenth Amendment,” and a State
may consent to suit by making a clear declaration that it intends
to submit itself to federal court jurisdiction.8 Coll. Sav. Bank
v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S.
666, 670 (1999); see also Waterfront Comm’n of N.Y. Harbor
v. Governor of N.J., 961 F.3d 234, 238 (3d Cir. 2020). But a
state’s consent to be sued in its own state courts, without more,
does not constitute an intention to submit itself to suit in federal
8 A State may also waive its immunity from suit by invoking
federal court jurisdiction voluntarily, such as by removing the
case to federal court. Lombardo, 540 F.3d at 196.

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court. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 99 n.9 (1984). This is because a state’s sovereign immunity
encompasses both whether the state may be sued and where it
may be sued. Id. at 99; Lombardo, 540 F.3d at 195. As a result,
in order for a state statute to constitute consent to submit itself
to federal jurisdiction, “it must specify the State’s intention to
subject itself to suit in federal court.” Port Auth. Trans-
Hudson Corp. v. Feeney, 495 U.S. 299, 306 (1990) (emphasis
in original).
The WPA does not state a clear intention by Delaware
to subject itself to suit in federal court. Rather, the WPA allows
for actions to be “brought in Superior Court in the county
where the alleged violation occurred, the county where the
complainant resides, or the county where the person against
whom the civil complaint is filed resides or has their principal
place of business.” Del. Code Ann. tit. 19, § 1704(b). The
WPA explicitly waives immunity for suits brought in state
court, not federal court. Eleventh Amendment immunity bars
Thompson’s WPA claim, so we will affirm the District Court’s
dismissal of Count IX.
V.
For the foregoing reasons, we will affirm the District
Court’s order dismissing Thompson’s amended complaint.

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