Billings v. Wichita State University

• Decision Date: 03 March 1983
• Docket Number: No. 81-1528.,81-1528.
• Citation: 557 F. Supp. 1348
• Parties: Dorothy K. BILLINGS, Plaintiff, v. WICHITA STATE UNIVERSITY, et al., Defendants.
• Court: U.S. District Court — District of Kansas

557 F. Supp. 1348

Dorothy K. BILLINGS, Plaintiff, v. WICHITA STATE UNIVERSITY, et al., Defendants.

No. 81-1528.

United States District Court, D. Kansas.

March 3, 1983.

COPYRIGHT MATERIAL OMITTED

James S. Phillips, Jr., Wichita, Kan., for plaintiff.

Leslie A. Kulick, Asst. Atty. Gen., Topeka, Kan., for defendants.

MEMORANDUM AND ORDER

KELLY, District Judge.

This employment discrimination suit has been brought by a female member of the Wichita State University faculty who alleges that for over a decade she has been paid less than similarly situated male colleagues in the University's Anthropology Department. Plaintiff seeks relief pursuant to the Fourteenth Amendment and 42 U.S.C. § 1983; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the Equal Pay Act, 29 U.S.C. § 206(d)(1); Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.; and the Kansas Act Against Discrimination, K.S.A. 44-1001 et seq. Defendants have moved to dismiss plaintiff's claims on various grounds; as explained below, plaintiff's claims under Section 1983, under Title IX, and under the Kansas Act Against Discrimination are barred by the Eleventh Amendment, her claims under Title VII are time barred, and her Equal Pay Act claims are time barred to the extent that they involve salary differentials that were established prior to October 2, 1978.

It is, of course, now well established that the universities established by the State of Kansas and governed by the Kansas Board of Regents function as alter ego agencies of the state and share its Eleventh Amendment immunities. Brennan v. University of Kansas, 451 F.2d 1287, 1290-91 (10th Cir.1971); Holt v. Wichita State University, No. 82-1172 (D.Kan. Sept. 7, 1982). It is also long established that the Eleventh Amendment bars lawsuits brought against state functionaries in their official, rather than personal, capacities, Sundry African Slaves v. Madrazo, 26 U.S. (1 Pet.) 110, 122-23, 7 L.Ed. 73 (1828), since suing a state officer in his official capacity amounts to "merely making him a party as a representative of the state, and thereby attempting to make the state a party," Ex Parte Young, 209 U.S. 123, 157, 28 S.Ct. 441, 452, 52 L.Ed. 714 (1908). Notwithstanding plaintiff's interpretation of Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), Eleventh Amendment immunity is not limited to lawsuits where funds payable from the state treasury are sought, but extends to suits where naught but injunctive relief is requested. Cory v. White, ___ U.S. ___, ___, 102 S.Ct. 2325, 2328, 72 L.Ed.2d 694, 699 (1982). These principles mandate that unless plaintiff can demonstrate that her claims fall within one of the three established exceptions to the Eleventh Amendment bar, her suit against these defendants must be dismissed. See Holt, supra; Annis v. Kansas State University, No. 78-4336 (D.Kan. Feb. 18, 1983).

The most significant and oft-invoked exception to the Eleventh Amendment bar to suits against states and their officers involves the famous Ex Parte Young fiction that state officials who violate federal law or otherwise act ultra vires are "stripped of their official or representative character" and may be held personally liable for their individual acts. 209 U.S. at 160, 28 S.Ct. at 454. Plaintiff, however, cannot avail herself of this exception because the only defendants named in their personal capacities, Clark Ahlberg and Paul Magelli, have been dismissed as individuals from this lawsuit as part of a settlement in which plaintiff received some $5,000.00 from Ahlberg's and Magelli's insurors.

The second exception to the Eleventh Amendment is where the state itself has waived its immunity. While this waiver need not be express, the Supreme Court has made it plain that waiver by state legislative enactments will be found "only where stated `by the most express language or by such overwhelming implications from the text as will leave no room for any other reasonable construction.'" Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1360, 39 L.Ed.2d 662 (1974) (quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 464, 53 L.Ed. 742 (1909)). Plaintiff contends that the Kansas Legislature's enactment of the Kansas Tort Claims Act, K.S.A. 75-6101 et seq., is sufficient evidence of waiver, and relies on the decision in Marrapese v. State of Rhode Island, 500 F.Supp. 1207 (D.R.I.1980), which held that Rhode Island had waived its immunity by virtue of a similar enactment. The state waiver argument, however, has consistently been rejected by the other judges in this Court, see Annis, supra, and cases cited therein, who have construed the Kansas Tort Claims Act's partial waiver of sovereign immunity as limited to suits brought in state court, and unlike the Rhode Island Legislature, 500 F.Supp. at 1222, the Kansas Legislature cannot be said to have sat silent in the face of judicial decisions announcing that it had, by one enactment or another, waived the state's immunity from suit in federal court: no such decisions exist. Moreover, this Court cannot accept the Marrapese court's reasoning that North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979), which dealt in part with an individual's waiver of his Miranda rights, or Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), which found that Congress had partially abrogated the states' constitutional immunity by passing the Attorney Fees Award Act, somehow denoted that a state's purported waiver of immunity should be judged by a more relaxed standard than Edelman's literal language would indicate. Simply put, this Court takes the Edelman court at its word.

The last exception to the Eleventh Amendment arises when Congress, exercising the powers granted by Section 5 of the Fourteenth Amendment, chooses to abrogate state immunity from suit in federal court. Recent decisions have found the necessary evidence of congressional intent where Congress has explicitly provided for a private action against state governments, Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), or where a statute's legislative history made it plain that "Congress considered and firmly rejected the suggestion that states should be immune," Hutto, 437 U.S. at 698 n. 31, 98 S.Ct. at 2577 n. 31, but Quern v. Jordan, 440 U.S. 332, 345, 99 S.Ct. 1139, 1147, 59 L.Ed.2d 358 (1979), has made it plain that these sorts of clear and positive indicia of intent to subject a state to suit in federal court must exist to conclude that Congress has overturned the constitutionally guaranteed immunity of the states.

Fitzpatrick, of course, expressly held that Title VII suits against state governments were not barred by the Eleventh Amendment, and it is plain that that case's reasoning extends to suits pursuant to the Equal Pay Act, which, like Title VII, expressly provides for private causes of action against state government employers. Title IX, however, does not expressly provide for a private right of action against anyone, much less against state governments, see Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), and this Court has searched that statute's legislative history in vain for even the whiff of a suggestion that Congress considered—much less firmly rejected — any suggestion that states ought to be immune from suit under Title IX. Quern expressly held, of course, that Section 1983 did not reflect any congressional intent to abrogate the states' Eleventh Amendment immunity, while the Kansas Act Against Discrimination is a creature of the Kansas Legislature, not of Congress. It accordingly follows that while plaintiff's Title VII and Equal Pay Act claims are not barred by the Eleventh Amendment, her remaining claims are.

Defendants also argue that plaintiff's Title VII claims were not filed within the ninety day limitations period of 42 U.S.C. § 2000e-5(f). It seems that plaintiff first filed formal complaints with the Equal Employment Opportunity Commission (EEOC) and Kansas Commission on Civil Rights (KCCR) in October 1973. As required by Title VII, the EEOC deferred to the KCCR, which investigated plaintiff's complaint, and in November 1976 determined that there was no probable cause to credit plaintiff's allegations of sex discrimination. Plaintiff was not satisfied with the KCCR's determination and requested that the EEOC itself deal with her complaint. In about March 1977, the EEOC determined that it would take jurisdiction of plaintiff's claims, and it conducted a relatively elaborate investigation. On June 7, 1978, the EEOC formally found reasonable cause to believe that defendant Wichita State University had, because of plaintiff's sex, paid her less than her male colleagues. EEOC attempts at conciliation between plaintiff and defendants failed, and the EEOC sent "failure to conciliate" notices to plaintiff and to defendants on September 22, 1978. At about this time, EEOC officials informed plaintiff that the EEOC would further review plaintiff's case and within 30 days determine whether to file suit on her behalf. Additional contacts between plaintiff and the EEOC gave plaintiff the impression that her case was lost somewhere within the EEOC bureaucracy. In fact, plaintiff's case had been referred to the United States Department of Justice, which has the sole authority to bring suit against a government employer, and that agency determined not to file suit on plaintiff's behalf. On January 31, 1979, the Justice Department sent plaintiff her "right to sue letter" by certified mail, return receipt requested. It is unclear from the record whether plaintiff received post office notices of certified mail or not, but for whatever reason, the letter went unclaimed and was returned to the Justice Department.

In February 1980, about one year after plaintiff had last had communication with the EEOC, plaintiff...