Goshtasby v. Board of Trustees of University of Illinois

• Decision Date: 13 April 1998
• Docket Number: No. 97-2297,97-2297
• Citation: 141 F.3d 761
• Parties: 76 Fair Empl.Prac.Cas. (BNA) 1179 Ardeshir GOSHTASBY, Plaintiff-Appellee, and United States of America, Intervenor-Appellee, v. BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 761

141 F.3d 761

76 Fair Empl.Prac.Cas. (BNA) 1179

Ardeshir GOSHTASBY, Plaintiff-Appellee and United States of America, Intervenor-Appellee, v. BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, Defendant-Appellant.

No. 97-2297.

United States Court of Appeals Seventh Circuit.

Argued Dec. 8, 1997.

Decided April 13, 1998.

Lisa Kane (argued), John Green, Kane & Associates, Chicago, IL, for Plaintiff-Appellee.

Jeffrey J. Ward, Keck, Mahin & Cate, Carla J. Rozycki (argued), Jenner & Block, Norma W. Zeitler, McDermott, Will & Emery, Chicago, IL, for Defendant-Appellant.

Jessica Dunsay Silver, Seth M. Galanter (argued), Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, Thomas P. Walsh, Office of the United States Attorney, Civil Division, Chicago, IL, for Intervenor.

Cathy Ventrell-Monsees, American Association of Retired Persons, Washington, DC, for Amicus Curiae.

Before KANNE, ROVNER, and EVANS, Circuit Judges.

KANNE, Circuit Judge.

In an uphill battle, the Board of Trustees of the University of Illinois ("the University") contends that Congress did not abrogate the states' Eleventh Amendment immunity when it amended the Age Discrimination in Employment Act in 1974. See Fair Labor Standards Act Amendments of 1974, Pub.L. No. 93-259, § 28, 88 Stat. 74. The district court denied the University's motion to dismiss. Relying on a wealth of our precedent and our application of City of Boerne v. Flores, --- U.S. ----, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), we affirm the district court's denial.

I. HISTORY

Goshtasby began working at the University's Chicago campus as an assistant professor of engineering in 1989. In December 1994, the engineering department recommended him and three other candidates for tenure. In May 1995, the University officially denied him tenure and informed him that it would only issue him a terminal contract. Goshtasby was the only one of these candidates denied tenure. Goshtasby alleges that he performed his job satisfactorily and that he was qualified for his position. He also alleges that each of the tenured individuals was younger and less qualified than he. Goshtasby believes that his age was the motivating factor for this decision. He was 45.

On June 15, 1996, Goshtasby filed a complaint against the University alleging that he was discriminated against on the basis of his age in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. Goshtasby seeks damages and equitable relief.

On September 17, 1996, the University moved to dismiss the complaint as barred by the Eleventh Amendment. Relying on the Supreme Court's decision in Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), the University contended that Congress' attempt to abrogate the states' sovereign immunity in the 1974 Amendment to the ADEA was unconstitutional. Specifically, it argued that "Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction" in the Eleventh Amendment, id. at 73, 116 S.Ct. at 1132, and that Congress did not abrogate the University's Eleventh Amendment immunity pursuant to a valid exercise of power under § 5 of the Fourteenth Amendment when it extended the ADEA to the states, see Fair Labor Standards Act Amendments of 1974, § 28, 88 Stat. 74 (amending 29 U.S.C. § 630). Alternatively, the University moved to stay the proceedings in the district court pending an interlocutory appeal of the denial of the University's Eleventh Amendment defense.

The district court denied the University's motion to dismiss. See Goshtasby v. University of Ill.-Chicago, No. 96 C 4271, slip op. at 10, 1997 WL 367362 (N.D.Ill. May 15, 1997). In doing so, the court relied on the precedent of this Court and the majority of other courts that have considered this issue. See id. at 8-9.

The University appealed to this Court. We have jurisdiction of this appeal pursuant to 28 U.S.C. § 1291 under the collateral order doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). See Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 145, 113 S.Ct. 684, 688, 121 L.Ed.2d 605 (1993). On May 29, 1997, the University filed a motion to stay proceedings pending appeal. Goshtasby then moved for summary affirmance of the district court's decision on June 16, 1997. After both parties responded to the respective motions, we denied Goshtasby's motion for summary affirmance and stayed proceedings in the district court pending this appeal. See Goshtasby v. Board of Trustees of Univ. of Ill., 123 F.3d 427, 428 (7th Cir.1997).

II. ANALYSIS

We review a district court's dismissal under Rule 12(b)(1) de novo. See Selbe v. United States, 130 F.3d 1265, 1266 (7th Cir.1997); Calderon v. United States, 123 F.3d 947, 948 (7th Cir.1997).

The Eleventh Amendment to the Constitution states 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. Although the text of the Amendment appears to restrict only the federal courts' Article III diversity jurisdiction, the Supreme Court has interpreted this Amendment "to stand not so much for what it says, but for the presupposition ... which it confirms." Blatchford v. Native Village of Noatak, 501 U.S. 775, 779, 111 S.Ct. 2578, 2581, 115 L.Ed.2d 686 (1991). "The Amendment is rooted in a recognition that the States, although a union, maintain certain attributes of sovereignty, including sovereign immunity." Puerto Rico Aqueduct, 506 U.S. at 146, 113 S.Ct. at 689. For over a century, the Supreme Court has interpreted the Amendment to deny the federal courts authority to entertain a suit brought by private parties against a state. See Hans v. Louisiana, 134 U.S. 1, 15, 10 S.Ct. 504, 507, 33 L.Ed. 842 (1890).

The Eleventh Amendment bar to suit, however, is not absolute. A state may consent to be sued in federal court, and in certain circumstances, Congress may abrogate the states' sovereign immunity. See Seminole Tribe, 517 U.S. at 63-66, 71 n. 15, 116 S.Ct. at 1128, 1131 n. 15; Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 2671, 49 L.Ed.2d 614 (1976). In this case, both parties agree that the University has not consented to suit. Thus, we must evaluate whether Congress abrogated the states' immunity in a constitutionally acceptable manner.

To determine whether Congress abrogated the states' Eleventh Amendment immunity in enacting the ADEA, we must examine two issues: "first, whether Congress has 'unequivocally expresse[d] its intent to abrogate the immunity,' and second, whether Congress has acted 'pursuant to a valid exercise of power.' " Seminole Tribe, 517 U.S. at 55, 116 S.Ct. at 1123 (internal citations omitted) (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 426, 88 L.Ed.2d 371 (1985)); see also Dellmuth v. Muth, 491 U.S. 223, 229-30, 109 S.Ct. 2397, 2400-02, 105 L.Ed.2d 181 (1989); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 243, 105 S.Ct. 3142, 3147-48, 87 L.Ed.2d 171 (1985).

A. Intent to Abrogate

The ADEA makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). When Congress enacted the ADEA in 1967, the statute applied only to private employers. See EEOC v. Elrod, 674 F.2d 601, 605-06 (7th Cir.1982). In 1974, Congress amended the statute to apply to states. See Fair Labor Standards Act Amendments of 1974, § 28, 88 Stat. 74. It did so by expanding the definition of "employer" to encompass "a State or political subdivision of a State and any agency or instrumentality of a State," id. § 28(a)(2), 88 Stat. 74 (amending 29 U.S.C. § 630(b)(2)), and by amending the term "employee" to include "employees subject to the civil service laws of a State government," id. § 28(a)(4), 88 Stat. 74 (amending 29 U.S.C. § 630(f)). The ADEA also explicitly stated that an employer who violates it is liable for legal and equitable relief. See 29 U.S.C. § 626(b), (c).

The University contends that Congress did not unequivocally express its intent to abrogate the states' immunity when it amended the ADEA. It interprets the Supreme Court's Eleventh Amendment jurisprudence to imply that the simple expansion of the definitions of "employer" and "employee" is insufficient to override the states' sovereign immunity. See Dellmuth, 491 U.S. at 231, 109 S.Ct. at 2402 (stressing that "imperfect confidence will not suffice"); Atascadero State Hosp., 473 U.S. at 246, 105 S.Ct. at 3149 (holding that "[a] general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment").

We addressed this question directly in Davidson v. Board of Governors of State Colleges & Univs., 920 F.2d 441, 443 (7th Cir.1990). After reviewing the relevant provisions we concluded that "[u]nless Congress had said in so many words that it was abrogating the states' sovereign immunity in age discrimination cases--and that degree of explicitness is not required ...--it could not have made its desire to override the states' sovereign immunity clearer." Id. (citations omitted). Thus, we held that states and their agencies were amenable to suit under the ADEA notwithstanding the Eleventh Amendment. See id.; accord Hurd v. Pittsburg State Univ., 29 F.3d 564, 564-65 (10th Cir.1994) (holding that Congress abrogated states' Eleventh Amendment immunity in ADEA's 1974 amendment); Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694, 700-01 (1st Cir.1983) (same).

The University, however, requests that we reconsider our decision in Dav...