Coger v. Board of Regents of State of Tenn., No. 97-5134

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: COLE
• Citation: 154 F.3d 296
• Decision Date: 17 August 1998
• Docket Number: No. 97-5134
• Parties: 77 Fair Empl.Prac.Cas. (BNA) 818, 73 Empl. Prac. Dec. P 45,447, 129 Ed. Law Rep. 47 Dalvan M. COGER; Joseph K. Davis; Carolyn Thorpe Furr; Lucille Golightly; Thomas M. Hughes; Janie S. Knight; Charles E. Long, Jr.; Harry Richard Mahood; Ramona Madson Mahood; Robert Marshall; Betty Hull Owen; June Rose Richie; Steve Scesa; Charles R. Schroeder; Robert A. Snyder; Bob J. Tucker; Sharon L. Van Oteghen, Plaintiffs-Appellants, William Welch, Plaintiff, United States of America, Intervenor, v. BOARD OF REGENTS OF THE STATE OF TENNESSEE, A Subdivision of the State of Tennessee; Memphis State University, An Institution operated by the State Board of Regents; Thomas G. Carpenter, Individually and as President of Memphis State University; Victor E.Feisal,Feisal, Individually and as Vice-President of Academic Affairs at Memphis State University, Defendants-Appellees.

Page 296

154 F.3d 296 77 Fair Empl.Prac.Cas. (BNA) 818,
73 Empl. Prac. Dec. P 45,447, 129 Ed. Law Rep. 47 Dalvan M. COGER; Joseph K. Davis; Carolyn Thorpe Furr;
Lucille Golightly; Thomas M. Hughes; Janie S. Knight;
Charles E. Long, Jr.; Harry Richard Mahood; Ramona Madson
Mahood; Robert Marshall; Betty Hull Owen; June Rose
Richie; Steve Scesa; Charles R. Schroeder; Robert A.
Snyder; Bob J. Tucker; Sharon L. Van Oteghen, Plaintiffs-Appellants,
William Welch, Plaintiff,
United States of America, Intervenor,
v.
BOARD OF REGENTS OF THE STATE OF TENNESSEE, A Subdivision of
the State of Tennessee; Memphis State University, An
Institution operated by the State Board of Regents; Thomas
G. Carpenter, Individually and as President of Memphis State
University; Victor E.Feisal,Feisal, Individually and as
Vice-President of Academic Affairs at Memphis State
University, Defendants-Appellees. No. 97-5134. United States Court of Appeals,
Sixth Circuit. Argued April 30, 1998.
Decided Aug. 17, 1998.

Page 298

Donald A. Donati (argued and briefed), Jeffery L. Atchley (briefed), Donati & Associates, Memphis, TN, for Plaintiffs-Appellants.

Douglas A. Hedin (briefed), Law Office of Douglas A. Hedin, Minneapolis, MN, for National Employees Lawyers Ass'n.

Thomas W. Osborne (briefed), American Association of Retired Persons, Washington, DC, for American Association of Retired Persons.

Sheryl H. Lipman (briefed), Burch, Porter & Johnson, Memphis, TN, Michael E. Moore (argued and briefed), Albert K. Cocke, Office of the Attorney General, Criminal Justice Division, Nashville, TN, for Board of Regents of the State of Tenn.

Sheryl H. Lipman (briefed), Burch, Porter & Johnson, Memphis, TN, Albert K. Cocke,

Page 299

Office of the Attorney General, Criminal Justice Division, Nashville, TN, for Memphis State University and Thomas G. Carpenter.

Albert K. Cocke, Office of the Attorney General, Criminal Justice Division, Nashville, TN, for Victor E. Feisal.

Seth M. Galanter (argued and briefed), U.S. Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, for United States of America.

Jeffrey S. Sutton (argued and briefed), State Solicitor, Columbus, OH, Jack W. Decker (briefed), Office of the Attorney General, Employment Law Section, Columbus, OH, for State of Ohio.

Before: JONES, MOORE, and COLE, Circuit Judges.

OPINION

COLE, Circuit Judge.

This appeal presents a single issue: are states immune from suits brought under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., on the basis of Eleventh Amendment immunity? This issue requires us to consider, in light of the Supreme Court's decisions in Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) and City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), the following two questions: (1) whether Congress expressed its intent to abrogate the states' Eleventh Amendment immunity in ADEA actions; and, if so, (2) whether Congress acted pursuant to a valid exercise of its enforcement power under Section 5 of the Fourteenth Amendment.

Upon consideration of this case, the district court determined that the ADEA did not abrogate the states' Eleventh Amendment immunity and, accordingly, dismissed the ADEA suit at issue on the basis of that immunity. We disagree with the district court and conclude that: (1) Congress unequivocally expressed its intent to abrogate the states' Eleventh Amendment immunity in ADEA suits; and, in so doing, (2) Congress acted pursuant to a valid exercise of its Section 5 authority to enforce the Equal Protection Clause of the Fourteenth Amendment. Because the district court erred in dismissing the underlying cause, we REVERSE and REMAND for further proceedings in accordance with this opinion.

I.

This ADEA action was brought in 1989 by seventeen senior faculty members of Memphis State University (now known as the University of Memphis) who were employed in ten different departments of the university. The plaintiffs ("Faculty Members") asserted claims of individual disparate treatment, as well as claims of disparate impact and pattern or practice discrimination in violation of the ADEA. The Faculty Members specifically challenged the university's salary increase and faculty evaluation program as being used discriminatorily against older faculty.

After discovery by both sides, the district court conducted a bench trial beginning in December of 1993, which took place sporadically over the course of the next five months. Upon the conclusion of the Faculty Members' proof in May 1994, the defendants (collectively, "the University") filed motions in June of 1994 pursuant to Fed.R.Civ.P. 52(c) for judgment on partial findings. ¹ On May 24, 1996, the district court entered an order denying in part and granting in part the motion for partial findings. The district court granted the motion as to eight of the Faculty Members on their individual disparate treatment claims and denied the motion as to all other claims.

At about this time in the proceedings, in March 1996, the Supreme Court decided Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), in which it

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addressed the issue of the states' Eleventh Amendment immunity from suit. In September of 1996, the University filed a motion to dismiss the action pursuant to Fed.R.Civ.P. 12(b)(1) (lack of subject matter jurisdiction) and Fed.R.Civ.P. 12(b)(6) (failure to state a claim for which relief may be granted) based on its claim of Eleventh Amendment immunity from suit. On January 2, 1997, without continuing the trial to hear the University's proof, the district court entered an order dismissing the ADEA action in its entirety on the basis that the State of Tennessee enjoyed Eleventh Amendment immunity against ADEA actions.

The Faculty Members then filed a timely notice of appeal.

II.

We review de novo a district court's dismissal of a suit for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). See Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 2409, 138 L.Ed.2d 175 (1997). We must construe the complaint in the light most favorable to the plaintiff, accept the complaint's factual allegations as true, and determine whether it is beyond a doubt that the plaintiff can prove no set of facts in support of his claims that would entitle him to relief. Id.

In addition, we review de novo a district court's dismissal of a case pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. See Musson Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244, 1248 (6th Cir.1996).

III.

A. The Eleventh Amendment and Seminole Tribe

Through its provision of sovereign immunity, the Eleventh Amendment to the United States Constitution denies the federal courts jurisdiction to entertain a suit brought by an individual against a state. See Seminole Tribe, 517 U.S. at 54, 116 S.Ct. 1114; Hans v. Louisiana, 134 U.S. 1, 15, 10 S.Ct. 504, 33 L.Ed. 842 (1890). The Eleventh Amendment provides:

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. However, there are exceptions to the states' sovereign immunity. Congress may abrogate the states' Eleventh Amendment sovereign immunity pursuant to Section 5 of the Fourteenth Amendment, ² which provides Congress with the power to enforce the Fourteenth Amendment. Id. 116 S.Ct. at 1123. Among the provisions of the Fourteenth Amendment is the Equal Protection Clause. ³ See U.S. Const. amend. XIV, § 1.

In Seminole Tribe, the Supreme Court established a two-part inquiry for determining whether Congress abrogated the states' sovereign immunity when enacting a particular statute. See 517 U.S. at 55, 72-73, 116 S.Ct. 1114. The Court held that, absent a state's waiver, states retain their sovereign immunity unless: (1) Congress unequivocally expressed its intent to abrogate the immunity; and (2) Congress acted pursuant to a valid exercise of its enforcement power under Section 5 of the Fourteenth Amendment. Id.; see also Timmer v. Michigan Dep't of Commerce, 104 F.3d 833, 837, 838 (6th Cir.1997).

In order to satisfy the first Seminole Tribe requirement, Congress must make its intent

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to abrogate the states' immunity "unmistakably clear." Seminole Tribe, 517 U.S. at 56, 116 S.Ct. 1114 (quotation and citation omitted). To satisfy the second requirement, Congress must act "pursuant to a constitutional provision granting Congress the power to abrogate." Id. at 59, 116 S.Ct. 1114. Because Section 5 of the Fourteenth Amendment is the only constitutional provision recognized by the Supreme Court as granting Congress the power to abrogate the states' immunity, id. at 66, 72-73, 116 S.Ct. 1114, the second Seminole Triberequirement necessitates that we determine whether Congress had the authority pursuant to Section 5 of the Fourteenth Amendment to abrogate the states' sovereign immunity in ADEA actions.

B. Intent to Abrogate

We must first decide whether Congress made its intent to abrogate the states' immunity "unmistakably clear," Seminole Tribe, 517 U.S. at 56, 116 S.Ct. 1114 (quotation and citation omitted), when it enacted the 1974 amendments to the ADEA, which extended the ADEA's applicability to the states. See Fair Labor Standards Act Amendments of 1974, § 28, 88 Stat. 74. The University argues that, as the district court found, the language of the ADEA does not make Congress's intent to abrogate the states' immunity unmistakably clear, as required by the Supreme Court. The University contends that the ADEA's definition of "employer," which includes states and thus makes it possible for states to be liable as employers of ADEA plaintiffs,...