Scott v. University of Mississippi

Citation148 F.3d 493
Decision Date27 July 1998
Docket NumberNo. 96-60385,96-60385
Parties77 Fair Empl.Prac.Cas. (BNA) 1085, 127 Ed. Law Rep. 688 Linda Anne SCOTT, Plaintiff-Appellee-Cross-Appellant, v. UNIVERSITY OF MISSISSIPPI, Defendant-Appellant-Cross-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Jim D. Waide, III, David Anthony Chandler, Lisa S. Rohman, Waide Law Firm, Tupelo, MS, Nancy Allen Wegener, Clarksdale, MS, for Scott.

Seth Michael Galanter, Jessica Dunsay Silver, U.S Dept. of Justice, Appellate Section, Civil Rights Div., Washington, DC, for United States.

Mary Ann Connell, James Cal Mayo, Jr., The University of Mississippi, University, MS, Charles T. Rubisoff, Jackson, MS, for University of Mississippi.

Thomas W. Osborne, Laurie McCann, Melvin Radowitz, American Ass'n of Retired Persons, Washington, DC, for American Ass'n of Retired Persons, Amicus Curiae.

Douglas A. Hedin, Minneapolis, MN, for National Employment Lawyers Ass'n, Amicus Curiae.

Appeals from the United States District Court for the Northern District of Mississippi.

Before EMILIO M. GARZA, STEWART and DENNIS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

The University of Mississippi ("University") appeals the judgment entered against it following a jury trial in this Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., case brought by Linda Anne Scott. Holding that Scott failed to adduce sufficient evidence from which a jury could reasonably infer discrimination and, therefore, that the district court erred in denying judgment as a matter of law to the University, we reverse.

I

In 1991, the University of Mississippi School of Law (the "Law School") hired Linda Anne Scott as a reference librarian in the Law School library. In 1993, when she was 54 years old, Scott applied for the position of legal writing specialist, a ten-month contractual, non-tenure-track position (the "1993 hiring"). To make the hiring decision, the law school convened a four-member committee, consisting of David E. Shipley, Professor and then Dean of the Law School, Larry S. Bush, Associate Professor, Larry Pittman, Assistant Professor, and Sylvia Robertshaw, Director of the Law School's legal writing program. From twenty-six total applicants, the committee selected six finalists, ultimately ranking Sandra Shelson first, Anne Gullick second, and Scott third. 1 At that time, Gullick was thirty-three years old. The committee first offered the position to Shelson, who declined the offer, and then to Gullick, who accepted it. After learning of the decision to hire Gullick, Scott filed a charge of age discrimination with the Equal Employment Opportunity Commission ("EEOC") and, one year later, in 1994, this law suit. In early 1995, when a legal writing specialist position again became available, Scott applied for it (the "1995 hiring"). Of thirty-three applicants, Scott was again one of the finalists, but she was not offered the position.

Scott's original complaint set forth a claim of age discrimination for the 1993 hiring. She later amended her complaint to include a claim of age discrimination for the 1995 hiring and a claim that her not being hired in 1995 was retaliation for filing her age discrimination claim for the 1993 hiring (the "second amended complaint"). Before trial, the University submitted motions in limine (1) to exclude or limit the testimony of Scott's expert, Mark Baggett; (2) to limit Scott's evidence of retaliation to those claims of retaliation raised in her second amended complaint; and (3) to exclude all testimony regarding age discrimination in the 1995 hiring. The court allowed Baggett to testify about the 1993 hiring, but, finding that Scott had not timely supplemented Baggett's opinions related to the 1995 hiring, disallowed his testimony about the 1995 hiring. The court next granted the University's motion regarding evidence of retaliation, limiting Scott to the charges of retaliation raised in her second amended complaint. Finally, with respect to the 1995 hiring, the court ruled that Scott could testify "in terms of retaliation but not as a separate discrimination claim" because she had not presented the age discrimination claim to the EEOC.

The court thus submitted two claims to the jury: (1) an age discrimination claim for the 1993 hiring, and (2) a retaliation claim for the 1995 hiring. The jury returned a verdict in favor of Scott on the age discrimination claim, but in favor of the University on the retaliation claim. Before the court gave the jury its instructions, the parties stipulated that the court would determine the question of damages upon a verdict for Scott. After the jury rendered its verdict, the court ordered the University to hire Scott as a legal writing specialist at the next vacancy and awarded her front and back pay. Both parties submitted motions for judgment as a matter of law at the close of evidence and after the verdict.

The University contends on appeal that the district court erred (1) in concluding as a matter of law that it did not have Eleventh Amendment immunity from suit under the ADEA; (2) in denying its motion for judgment as a matter of law because the evidence was insufficient to support Scott's age discrimination claim; and (3) in admitting Baggett's testimony regarding the 1993 hiring. Scott cross-appeals the jury verdict on the retaliation claim, raising evidentiary issues only. Specifically, she claims that the court erroneously excluded Baggett's testimony regarding the 1995 hiring and evidence of retaliation after Scott filed her second amended complaint. Scott also challenges the court's refusal to allow evidence about her claim of age discrimination in the 1995 hiring. Both parties also appeal various issues related to damages. 2 Because the Eleventh Amendment, when applicable, imposes a limitation on our jurisdiction, see Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 1122, 134 L.Ed.2d 252 (1996), we turn first to that issue.

II

The district court held, without explanation, that Congress had abrogated the states' Eleventh Amendment immunity from suit under the ADEA and that Scott's ADEA suit was therefore not barred by the Eleventh Amendment. The University disagrees, arguing that it is immune from suit under the ADEA. 3

"The Eleventh Amendment provides immunity to states from suits in federal court by private persons." Coolbaugh v. Louisiana, 136 F.3d 430 (5th Cir.1998), petition for cert. filed, 66 U.S.L.W. 3783 (U.S. May 28, 1998) (No. 97-1941). That immunity is, however, not without limit: "A state may consent to be sued in federal court, and in certain circumstances, Congress may abrogate the states' sovereign immunity." 4 Goshtasby v. Board of Trustees of the Univ. of Ill., 141 F.3d 761, 765 (7th Cir.1998) (citing 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 Seminole Tribe, the Supreme Court outlined a two-part inquiry for determining whether Congress has abrogated the states' sovereign immunity from suit under the Eleventh Amendment in enacting particular legislation: "first, whether Congress 'has unequivocally expressed its intent to abrogate the immunity,' and second, whether Congress has acted 'pursuant to a valid exercise of constitutional power.' " Seminole Tribe, 517 U.S. at 55, 116 S.Ct. at 1123 (internal citation omitted) (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 426, 88 L.Ed.2d 371 (1985)). The University contends that in extending the ADEA to the states, Congress satisfied neither of these prongs.

A

Congress's intent to abrogate state sovereign immunity "must be obvious from 'a clear legislative statement.' " Seminole Tribe, 517 U.S. at 55, 116 S.Ct. at 1123 (quoting Blatchford v. Native Village of Noatak, 501 U.S. 775, 786, 111 S.Ct. 2578, 2584, 115 L.Ed.2d 686 (1991)). Congress may abrogate state sovereign immunity "only by making its intention unmistakably clear in the language of the statute." Id. at 56, 116 S.Ct. at 1123, (quoting Dellmuth v. Muth, 491 U.S. 223, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989)). "A general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment." Dellmuth v. Muth, 491 U.S. at 231, 109 S.Ct. at 2402, 105 L.Ed.2d 181 (1989) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246, 105 S.Ct. 3142, 3149, 87 L.Ed.2d 171 (1985)). Instead, both the text and structure of the statute must "make[ ] it clear that the State is the [intended] defendant to the suit." Seminole Tribe, 517 U.S. at 57, 116 S.Ct. at 1124. Congress is not required, however, to "explicitly reference to state sovereign immunity or the Eleventh Amendment." Dellmuth, 491 U.S. at 233, 109 S.Ct. at 2403 (Scalia, J., concurring).

As originally passed, the ADEA was enacted pursuant to the Commerce Clause and applied only to private sector employers. Age Discrimination in Employment Act of 1967, Pub.L. No. 90-202, 81 Stat. 602 (codified as amended at 29 U.S.C. § 621 et seq.). In 1974, Congress amended the ADEA (the "1974 Amendment") to cover state and local government employees by expanding the definition of "employer" to include "a State or political subdivision of a State and any agency or instrumentality of a State." 5 Fair Labor Standards Amendments of 1974, Pub.L. No. 93-259, § 28(a)(2), 88 Stat. 55, 74 (codified as amended at 29 U.S.C § 630(b)(2)). We find that this reference to the "State" in the 1974 Amendment evidences a clear statement that Congress intended to subject the states to suit in federal court. See Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694, 701 (1st Cir.1983) ("[T]he ADEA's express authorization for the maintenance of suit against state employers comprises adequate evidence to demonstrate the congressional will that Eleventh Amendment immunity be abrogated.").

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