Hartman v. Regents of University of Colo.

Decision Date06 July 2000
Docket NumberNo. 98CA1633.,98CA1633.
Citation22 P.3d 524
PartiesVeta M. HARTMAN; Delaris Carpenter; Victor Pearn; and Mark Wolk, Plaintiffs-Appellees, v. REGENTS OF THE UNIVERSITY OF COLORADO; Charles Middleton, as Dean of the College of Arts and Sciences; and Leon Travis, as Assistant to the Dean of the College of Arts and Sciences, Defendants-Appellants.
CourtColorado Court of Appeals

Silver & DeBoskey, P.C., Bruce H. DeBoskey, Denver, Colorado; Miller Jester & Kearney, L.L.C., Jay S. Jester, Denver, Colorado, for Plaintiffs-Appellees

Hogan & Hartson L.L.P., Kathryn W. Bradley, H. Thomas Coghill, Denver, Colorado; University of Colorado, Office of University Counsel, Joanne M. McDevitt, Senior Associate University Counsel, Special Assistant Attorney General, Denver, Colorado, for Defendant-Appellant Regents of the University of Colorado

Pryor Johnson Montoya Carney and Karr, P.C., Elizabeth C. Moran, Scott S. Nixon, Englewood, Colorado, for Defendants-Appellants Charles Middleton and Leon Travis

Opinion by Judge RULAND.

Defendants, the Regents of the University of Colorado, Dean of the College of Arts and Sciences Charles Middleton, and Assistant to the Dean Leon Travis, appeal from the order denying their motions to dismiss the claims of plaintiffs, Veta M. Hartman, Delaris Carpenter, Victor Pearn, and Mark Wolk. We affirm in part, reverse in part, and remand for further proceedings.

Plaintiff Hartman was employed by the University as a Program Assistant by the Department of Economics. Before her retirement, Hartman filed a claim for overtime pay. The University reviewed the claim, and determined that Hartman was an exempt employee under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et seq. (2000). Based upon this review, the University also asserted that Hartman owed the University for wages wrongfully paid to her.

Hartman then filed suit in federal court. In her complaint, Hartman alleged that the University had violated FLSA overtime pay provisions by requiring her to work over 40 hours a week without proper compensation. In a separate claim, Hartman alleged that the individual defendants and the University had retaliated against her for exercising her rights under FLSA. Finally, Hartman alleged that both the University and the individual defendants engaged in a pattern of conduct which violated her civil rights under 42 U.S.C. § 1983 (2000).

While Hartman's federal suit was pending, the United States Supreme Court announced its opinion in Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). In Seminole Tribe, the court held that the Commerce Clause did not authorize Congress to limit the immunity of states under the Eleventh Amendment from lawsuits in the federal courts.

Hartman then voluntarily dismissed her complaint in the federal court and re-filed her complaint in the trial court. The claim for overtime pay was certified as a class action with Hartman acting as the class representative for certain employees of the University. However, only Hartman and the three other named plaintiffs remain as parties in this case, and only Hartman alleges claims against the individual defendants.

Asserting that Seminole Tribe should be applied to grant it immunity in cases brought against it in state court, the University filed a motion to dismiss the plaintiffs' FLSA claims. The University also requested dismissal of plaintiffs' § 1983 claim on the grounds that the University was not a "person" under § 1983. The individual defendants filed a separate motion to dismiss Hartman's retaliation claims under FLSA on the grounds that they also enjoy sovereign immunity from suit.

The trial court denied defendants' motions based upon its conclusion that neither the University nor the individual defendants enjoyed sovereign immunity from the FLSA claims. The court also determined that the University was "a person" for purposes of § 1983 claims.

Defendants appealed, but the appeal in this court was stayed pending announcement of the United States Supreme Court's decision in Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). There, the Supreme Court held, subject to exceptions not applicable here, that the Commerce Clause did not grant Congress authority to limit states' sovereign immunity in state courts. Instead, the court held that suits against the state were appropriate only to the extent that the state waived its immunity. This appeal was then briefed by the parties for decision.

We note that the individual defendants separately appealed the trial court's denial of their motion to dismiss Hartman's § 1983 claims against them. The trial court's order was affirmed, and those claims are still pending. See Hartman v. Middleton, 974 P.2d 1007 (Colo.App.1998).


Relying upon Alden, the University first contends that the FLSA claims and the § 1983 claim against it should be dismissed because it is an arm of the state and thus immune from these claims. We agree except insofar as plaintiffs assert non-tort claims for unpaid wages against the University.

Because the same factors are used to determine whether a state-created entity is an arm of the state for purposes of state sovereign immunity and to determine whether the state entity is a "person" under § 1983, we will address both here. See Simon v. State Compensation Insurance Authority, 946 P.2d 1298 (Colo.1997).

Section 1983 provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. (emphasis supplied)

The University has previously been held to be a "person" within the meaning of § 1983 by our supreme court in Uberoi v. University of Colorado, 713 P.2d 894 (Colo.1986). However, the result in Uberoi was questioned in Will v. Michigan Department of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), where the United States Supreme Court held that a state was not a person for purposes of § 1983. Further, subsequent to Will, our supreme court has adopted a new balancing test in Simon v. State Compensation Insurance Authority, supra, that includes three factors for determining whether an entity is an arm of the state or a "person" under § 1983. Hence, we do not view Uberoi as controlling resolution of the issue before us.

Indeed, in Graham v. State, 956 P.2d 556 (Colo.1998), the court applied the three-factor Simon test to conclude that the University of Northern Colorado was an arm of the state. In doing so, the court overruled Uberoi "to the extent that it stands for the ipso facto proposition that all state universities are persons susceptible to suit under § 1983." See Graham v. State, supra, 956 P.2d at 562.

While we recognize that the Simon court expressly determined to defer decision on whether Will overruled Uberoi, we also conclude that the current determination of the University's status necessarily requires application of the test set forth in Simon. See Simon v. State Compensation Insurance Authority, supra (fn.2).

In Simon, the court held that the following three factors must be examined to determine whether an entity is an arm of the state: how the entity is characterized by state law; the level of autonomy and independence the entity enjoys from the control of the state; and whether any judgment against the entity will ultimately be paid by the state.

In applying these factors, the Simon court held that the Colorado Compensation Insurance Authority (CCIA) was not an arm of the state. This holding was based in part on the fact that the CCIA's enabling statute, § 8-45-101(1), C.R.S.1999, expressly stated that it was not a state agency. The court further concluded that, in creating the CCIA, the General Assembly "intended to create the equivalent of a private insurance company." See Simon v. State Compensation Insurance Authority, supra, 946 P.2d at 1309. The court later applied these factors in Graham and determined, as noted, that UNC was an arm of the state.


Consistent with Simon and Graham, we first examine how state law characterizes the University.

Unlike the CCIA, the University was created by the Colorado Constitution as a state institution of higher education. Colo. Const. art. VIII, § 5(1). Additionally, numerous statutes expressly define state institutions of higher education, including the University, as state agencies. See § 24-18-102(9), C.R.S. 1999 ("state agency" includes state institution of higher education); §§ 24-30-1102(5), 24-30-1118(4)(c), and 24-30-1301(12), C.R.S. 1999 (same). Further, as a state agency, like UNC, the University is expressly entitled to representation by the Colorado Attorney General. See §§ 24-31-201(3) and 23-20-110, C.R.S.1999.

Thus, we conclude that state law indicates that the University serves a state function as an arm of the state.

Contrary to plaintiffs' contention, the Graham court rejected the premise that a university's corporate body status precludes it from being considered an arm of the state. Further, the fact that the Regents are subject to state-wide election, rather than appointment by the governor, does not compel a different result. See Ewing v. Board of Regents of University of Michigan, 552 F.Supp. 881 (E.D.Mich.1982)(university whose regents were publicly elected officials was still entitled to Eleventh Amendment Immunity).


Under Simon and Graham, we next examine the level of autonomy and independence the University enjoys from the control of the state. Colo. Const. art. VIII, § 5(1) states that: "[T]he establishment, management, and...

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