Cherry v. Univ.of Wisconsin System Bd of Regents

• Decision Date: 11 October 2001
• Docket Number: No. 00-2435,PLAINTIFF-APPELLEE,DEFENDANT-APPELLANT,00-2435
• Citation: 265 F.3d 541
• Parties: (7th Cir. 2001) KELLY CHERRY,, v. UNIVERSITY OF WISCONSIN SYSTEM BOARD OF REGENTS,
• Court: U.S. Court of Appeals — Seventh Circuit

Page 541

265 F.3d 541 (7th Cir. 2001)

KELLY CHERRY, PLAINTIFF-APPELLEE, v. UNIVERSITY OF WISCONSIN SYSTEM BOARD OF REGENTS, DEFENDANT-APPELLANT.

No. 00-2435

U.S. Court of Appeals, Seventh Circuit

Argued January 18, 2001

September 07, 2001

Rehearing En Banc Denied Oct. 11, 2001

Appeal from the United States District Court for the Western District of Wisconsin. No. 00 C 142--John C. Shabaz, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Bauer, Manion, and Diane P. Wood, Circuit Judges.

Manion, Circuit Judge

Kelly Cherry sued her former employer, the Board of Regents of the University of Wisconsin System, alleging that the Board paid her at a lower rate of compensation than her male colleagues because of her sex, in violation of the Equal Pay Act and Title IX. The Board moved to dismiss, alleging that the Eleventh Amendment bars Cherry's claims. The district court denied the motion, and the Board appealed. We affirm.

I.

Professor Kelly Cherry taught in the English Department at the University of Wisconsin-Madison from 1977 to 1999. The Board of Regents of the University of Wisconsin System ("the Board") is a State entity that oversees the University of Wisconsin-Madison, which is a State educational institution and recipient of Title IX funds from the federal government. Cherry was a tenured professor at the University of Wisconsin-Madison until she resigned on August 22, 1999.

After her resignation, Cherry sued the Board, alleging that her salary "remained significantly lower" than that of her male colleagues with similar credentials, and thus, over a number of years, she "was subjected to sex discrimination on the basis of salary" in violation of the Equal Pay Act ("EPA"), 29 U.S.C. sec. 206(d), and Title IX of the Education Amendments of 1972, 20 U.S.C. sec. 1681. Cherry sought compensatory and punitive damages in her Amended Complaint. The Board moved to dismiss Cherry's Amended Complaint, arguing that: (1) Title VII is Cherry's sole avenue for her claims, and thus it precludes her EPA and Title IX claims;¹ (2) Cherry fails to state a Title IX claim; (3) the Eleventh Amendment bars the EPA and Title IX claims; and (4) the Board is immune from any punitive damages award under Title IX. The district court denied the Board's motion, rejecting all of the Board's arguments. The Board appealed.

II.

In this collateral order appeal, the Board reasserts all of the arguments that it raised in its motion to dismiss. Under 28 U.S.C. sec. 1291, we have jurisdiction over appeals from "'final decisions' of the district courts." Furnace v. Board of Trustees of Southern Illinois University, 218 F.3d 666, 669 (7th Cir. 2000) (quoting 28 U.S.C. sec. 1291). A district court's denial of a motion to dismiss is not a final decision. Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. State of Wisconsin, 829 F.2d 601, 602 (7th Cir. 1987). But the collateral order doctrine is a "narrow exception to the finality rule." In re Moens, 800 F.2d 173, 175 (7th Cir. 1986). It permits an appeal from a non-final judgment if three criteria are met: the order must "(1) 'conclusively determine the disputed question,' (2) 'resolve an important issue completely separate from the merits of the action,' and (3) 'be effectively unreviewable on appeal from a final judg ment.'" Midland Asphalt Corp. v. United States, 489 U.S. 794, 799 (1989) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)); see also Furnace, 218 F.3d at 669 n. 2. The third criterion is difficult to satisfy, as the Supreme Court has stressed that the "narrow exception" of the collateral order appeal "is limited to trial orders 'affecting rights that will be irretrievably lost in the absence of an immediate appeal.'" In re Moens, 800 F.2d at 176 (quoting Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 430-31 (1985)). We must determine whether the Board's claims are immediately appealable without regard to whether a prompt decision by this court will resolve the litigation more quickly. See Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994).

Because the Eleventh Amendment concerns the Board's privilege not to be sued, which is a privilege that would be irretrievably lost if it were not immediately appealable, the issue of immunity from suit is properly raised in this collateral appeal. Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993); see also id. ("'The very object and purpose of the 11th Amendment were to prevent the indignity of subjecting a State to thecoercive process of judicial tribunals at the instance of private parties.'" (quoting In re Ayers, 123 U.S. 443, 505 (1887))). But the additional (non-immunity) claims asserted by the Board in support of its motion to dismiss (that Cherry failed to state a Title IX claim, and that Title VII precludes Cherry's EPA and Title IX claims) are not immediately appealable because they can be effectively reviewed on appeal from a final judgment. See Lac Courte, 829 F.2d at 602 (a refusal to dismiss a complaint or part thereof is the classic example of a non-final order that is not appealable under 28 U.S.C. sec. 1291, either directly or by invoking the collateral order rule). After a later final judgment of the district court, this court may effectively review the issues of whether Title VII precludes Cherry's EPA and Title IX claims, and whether Cherry properly failed to state a Title IX claim. In line with this court's reluctance to exercise pendent appellate jurisdiction over additional issues in a collateral appeal, we decline to exercise such jurisdiction in this case. See United States v. Bloom, 149 F.3d 649, 657 (7th Cir. 1998); see also Swint v. Chambers County Comm'n, 514 U.S. 35, 49-50 (1995) (expressing concern that "a rule loosely allowing pendent appellate jurisdiction" would encourage parties to parlay collateral orders into "multi-issue interlocutory appeal tickets").

We also decline to address the Board's claim that it is immune from a punitive damages award under Title IX. A claim of immunity to a certain class of damages is "'far removed'" from a claim of immunity from litigation. Burns-Vidlak v. Chandler, 165 F.3d 1257, 1260 (9th Cir. 1999) (quoting Pullman Constr. Indus., Inc. v. United States, 23 F.3d 1166, 1169 (7th Cir. 1994)). "[T]he Supreme Court has made it clear that a potentially 'erroneous ruling on liability may be reviewed effectively on appeal from final judgment.'" Burns-Vidlak, 165 F.3d at 1261 (quoting Swint, 514 U.S. at 43). If punitive damages are permitted to be, and in fact are assessed against the Board, this court can certainly review that issue if it arises from a later final judgment of the district court. In the meantime, the Board's claimed immunity from a punitive damages award will not be irretrievably lost if it is not reviewed in this collateral appeal. See, e.g., Moreno v. Consolidated Rail Corp., 99 F.3d 782, 789-92 (6th Cir. 1996) (en banc) (in affirming a district court's denial of a jury's award of punitive damages to a plaintiff under sec. 504 of the Rehabilitation Act, the Sixth Circuit concluded that sec. 504 does not provide a punitive damages remedy); see also Rein v. Socialist People's Libyan Arab Jamahiriya, 162 F.3d 748, 762 (2d Cir. 1998). We thus decline to exercise pendent appellate jurisdiction over this issue. See Crymes v. Dekalb County, Georgia, 923 F.2d 1482, 1485 (11th Cir. 1991) (declining to extend pendent appellate jurisdiction to the "non-final" issue of the district court's denial of appellants' motion to dismiss a punitive damages claim).

The remaining issues properly raised in this collateral order appeal are whether the Eleventh Amendment bars Cherry's EPA and Title IX claims. We "review de novo a district court's judgment on whether to dismiss a claim on Eleventh Amendment immunity grounds." MCI Telecommunications Corp. v. Illinois Bell Telephone Co., 222 F.3d 323, 337 (7th Cir. 2000).

The Board argues, however, that pursuant to Vermont Agency of Natural Resources v. U.S. ex rel. Stevens, 529 U.S. 765 (2000), we should avoid the immunity issues and dismiss Cherry's claims "on non-constitutional grounds." In support of its contention, the Board claims that Title VII precludes Cherry's EPA and Title IX claims, and thus that we should dismiss Cherry's claims on that ground instead of addressing whether the Eleventh Amendment bars Cherry's claims. In Vermont Agency, the Supreme Court determined that when a statute provides no indication that it "permits the cause of action it creates to be asserted against States," it is appropriate for the court to first make that statutory determination before conducting an Eleventh Amendment inquiry. Id. at 779; see Floyd v. Thompson, 227 F.3d 1029, 1035 (7th Cir. 2000). The Court concluded in Vermont Agency that because the False Claims Act ("FCA") provides no indication that States are subject to its penalties, the Court could resolve the case with that statutory determination without considering the issue of immunity. 529 U.S. at 787. But in this case, if it appears "in any way possible" for Cherry to sue the State under the EPA and Title IX, "then Vermont Agency indicates we should resolve the Eleventh Amendment issue first." Floyd, 227 F.3d at 1035.

The Board's argument is unavailing because unlike the FCA, the EPA and Title IX permit suits against the States. See Varner v. Illinois State University, 226 F.3d 927, 930 n. 1 (7th Cir. 2000) (29 U.S.C. sec. 216(b) authorizes private suits against the States to enforce the EPA) (citing Kimel v. Florida Board of Regents, 528 U.S. 62, 73 (2000)); see also 42 U.S.C. sec. 2000d-7(a)(1) (States are not immune from suit under Title IX). Thus, we must resolve the Eleventh Amend ment issues raised in this appeal. See Floyd, 227 F.3d at 1035.

A. The EPA Claim

The Board argues that the Eleventh Amendment bars Cherry's EPA...