Davidson v. Board of Governors of State Colleges and Universities for Western Ill. University

• Decision Date: 13 December 1990
• Docket Number: No. 90-1995,90-1995
• Parties: 54 Fair Empl.Prac.Cas. 956, 55 Empl. Prac. Dec. P 40,425, 59 USLW 2409, 64 Ed. Law Rep. 690 Alexander N. DAVIDSON, Plaintiff-Appellant, v. BOARD OF GOVERNORS OF STATE COLLEGES AND UNIVERSITIES FOR WESTERN ILLINOIS UNIVERSITY, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 441

920 F.2d 441

54 Fair Empl.Prac.Cas. 956,

55 Empl. Prac. Dec. P 40,425, 59 USLW 2409,

64 Ed. Law Rep. 690

Alexander N. DAVIDSON, Plaintiff-Appellant, v. BOARD OF GOVERNORS OF STATE COLLEGES AND UNIVERSITIES FOR WESTERN ILLINOIS UNIVERSITY, et al., Defendants-Appellees.

No. 90-1995.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 31, 1990.

Decided Dec. 13, 1990.

Donald R. Jackson, Peoria, Ill., for plaintiff-appellant.

Mark T. Dunn, Dunn, Goebel, Ulbrich, Morel & Hundeman, Bloomington, Ill., Stephen A. Yokich, Cornfield & Feldman, Chicago, Ill., for defendants-appellees.

Before WOOD, JR., POSNER, and EASTERBROOK, Circuit Judges.

POSNER, Circuit Judge.

This matter is before us on the plaintiff's appeal from the dismissal, as time-barred, of his suit under the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621 et seq. In 1978, when he was 58 years old, Alexander Davidson was hired by Western Illinois University, a state institution, as a professor in its college of business administration. On October 5, 1985, the university signed a collective bargaining agreement with a union representing faculty members, including Davidson, which provided that initial salaries of faculty members would be determined by individual negotiation when the faculty member was hired, but that thereafter a faculty member could obtain an individual raise (as distinct from participating in a general raise for all faculty members) only by producing a bona fide written offer of employment, whether from another university, a consulting firm, or some other employer. Upon verifying the genuineness of the offer, the president of Western Illinois University is authorized, although not required, to grant the faculty member a raise not to exceed the salary in the offer.

On March 9, 1987--seventeen months after the signing of the collective bargaining agreement--Davidson filed a complaint with the Equal Employment Opportunity Commission challenging the compensation system established by the agreement. He claimed that under it younger professors than he with no greater experience, academic credentials, or even faculty rank were being paid higher salaries. Later he supplemented his complaint by instancing the cases of two assistant professors hired in August 1987 at salaries higher than his. He filed his complaint in district court on February 22, 1989. Relying primarily on Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), the district judge held that the statute of limitations, both for the administrative and the judicial complaints, had started to run on October 5, 1985, when the collective bargaining contract was signed. The statute of limitations for filing an age discrimination complaint with the EEOC--a filing that is prerequisite to maintaining a suit--is 300 days in states such as Illinois that have an agency to enforce the age discrimination law. 29 U.S.C. Sec. 626(d)(2); Anderson v. Illinois Tool Works, Inc., 753 F.2d 622, 624 (7th Cir.1985). Davidson filed his administrative complaint long after the 300 days ran, assuming the period began to run when the collective bargaining agreement was signed.

The defendants (the university and others, but we can ignore the others) argue that the judge was correct to dismiss the suit as time-barred. But they also argue that it is barred on other grounds as well, including the Eleventh Amendment, a ground that we must discuss first because it goes to the existence of federal jurisdiction over the case. Edelman v. Jordan, 415 U.S. 651, 677-78, 94 S.Ct. 1347, 1362, 39 L.Ed.2d 662 (1974). Western Illinois University is the State of Illinois for purposes of the Eleventh Amendment, Ranyard v. Board of Regents, 708 F.2d 1235, 1237-38 (7th Cir.1983); Ellis v. Board of Governors, 102 Ill.2d 387, 80 Ill.Dec. 750, 466 N.E.2d 202 (1984), and the state has not consented to be sued in federal court. This does not matter, though, if two conditions are satisfied. The first is that the Age Discrimination in Employment Act have been enacted under a power granted by the Constitution to Congress to regulate the activities of the states, such as the power to regulate interstate commerce, Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 2286, 105 L.Ed.2d 1 (1989), or to enforce the prohibitions of the Fourteenth Amendment, Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 3145, 87 L.Ed.2d 171 (1985). The Supreme Court has settled this point by holding that the amendment which extended the age discrimination act to state governments was a valid exercise of congressional power under the commerce clause, EEOC v. Wyoming, 460 U.S. 226, 243, 103 S.Ct. 1054, 1064, 75 L.Ed.2d 18 (1983), while leaving open the question, inessential given its holding, whether it is also a valid exercise of Congress's power under section 5 of the Fourteenth Amendment--a question that we, at any rate, have answered "yes." EEOC v. Elrod, 674 F.2d 601, 609 (7th Cir.1982); Heiar v. Crawford County, 746 F.2d 1190, 1193-94 (7th Cir.1984); see also Ramirez v. Puerto Rico Fire Service, 715 F.2d 694 (1st Cir.1983). The second condition that must be satisfied to lift the bar of the Eleventh Amendment is that Congress have made unmistakably clear in the Act that it wants the states to be liable for violating it. Atascadero State Hospital v. Scanlon, supra, 473 U.S. at 242, 105 S.Ct. at 3147; Dellmuth v. Muth, 491 U.S. 223, 109 S.Ct. 2397, 2401, 105 L.Ed.2d 181 (1989). Whether this condition is satisfied is a question of first impression.

The Act defines "employer" (the class of potential defendants in age discrimination cases) to include "a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a state," 29 U.S.C. Sec. 630(b), and is explicit that an employer who violates the Act is liable for legal and equitable relief. 29 U.S.C. Secs. 626(b), (c). Unless 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, Pennsylvania v. Union Gas Co., supra; Dellmuth v. Muth, supra, 109 S.Ct. at 2402 (dictum)--it could not have made its desire to override the states' sovereign immunity clearer. Cf. Pennsylvania v. Union Gas Co., supra, 109 S.Ct. at 2278. This is not a case like Chew v. California, 893 F.2d 331, 334 (Fed.Cir.1990), where the word "whoever" in the patent statute was held insufficiently unequivocal a designation of the state to override its sovereign immunity, or BV Engineering Co. v. University of California, Los Angeles, 858 F.2d 1394, 1398 (9th Cir.1988), where the corresponding word in the copyright statute was "anyone." Employees of the Department of Public Health & Welfare v. Department of Public Health & Welfare, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973), is distinguishable from our case because the inference of inclusion arose from a confusing exception to an exception, to which moreover a meaning could be assigned that did not involve lifting the states' sovereign immunity. We hold that states and their agencies are liable under the age discrimination law notwithstanding the Eleventh Amendment.

The next question is whether this suit was filed too late, which in turn depends on whether the administrative complaint was filed too late. The Supreme Court has held that the time for attacking a discriminatory practice begins to run when the practice is first applied to you, not when the application blossoms into a full-blown injury. In Delaware State College v. Ricks, supra, the plaintiff was denied tenure, allegedly for improper reasons, a year before his employment contract expired. The Court held that the statute of limitations started to run when tenure was denied, not when the plaintiff lost his job because, as a consequence of being denied tenure, his employment contract was allowed to run out. Lorance v. AT & T Technologies, Inc., 490 U.S. 900, 109 S.Ct. 2261, 2268-69, 104 L.Ed.2d 961 (1989), held that you must challenge a seniority scheme that you believe is discriminatory when the scheme is adopted, not when--perhaps many years later--you are laid off or suffer some other tangible detriment as a result of the operation of the scheme. Lorance may be special. A suit that knocks out a seniority scheme interferes with rights that workers consider almost sacred; so there is special pressure to have any infirmity in such a scheme determined at the earliest possible opportunity, before a sense of entitlement to a specific place on the seniority roster takes hold in the minds of the workers. But Ricks cannot be distinguished from our case on that or any other ground.

Davidson contends that a compensation scheme under which an existing employee to get a raise must come up with an offer from another employer, while the starting salary of a new employee is not subject to any such limitation, discriminates against older workers because existing employees are likely to be, on average, older than new ones. As Davidson sees it, his university's compensation scheme set in motion a chain of events certain to result eventually in his receiving a lower salary than some younger faculty members of no greater experience or ability. He can get raises only by producing offers from other employers, while new and presumably younger employees can sign on at any salary that the university is generous enough to offer them. The scheme doomed him to eventual salary inferiority just as the denial of tenure doomed Ricks to eventual loss of his job.

The analysis and conclusion can be questioned. Davidson himself was 58 when hired. There was no limit on his initial salary and we may conjecture that it exceeded that of some--perhaps of most or all--of his younger colleagues. And it is not the case that once hired you can get a raise only if you gin up an offer from the outside. You...