Lagerstrom v. Mineta

• Decision Date: 13 January 2006
• Docket Number: No. CIV.A. 04-2517.,CIV.A. 04-2517.
• Citation: 408 F.Supp.2d 1207
• Parties: Robert C. LAGERSTROM, Plaintiff, v. Norman Y. MINETA, Secretary of Transportation Defendant.
• Court: U.S. District Court — District of Kansas

408 F.Supp.2d 1207

Robert C. LAGERSTROM, Plaintiff, v. Norman Y. MINETA, Secretary of Transportation Defendant.

No. CIV.A. 04-2517.

United States District Court, D. Kansas.

January 13, 2006.

Joseph K. Eischens, Stephen C. Thornberry, Thornberry & Eischens, LLC, Kansas City, MO, for Plaintiff.

Christopher Allman, Office of United States Attorney, Kansas City, KS, for Defendant.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Robert C. Lagerstrom brings suit against Norman Y. Mineta, Secretary of the United States Department of Transportation, under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. This matter is before the Court on Defendant's Motion To Dismiss Plaintiff's Disparate Impact Claims Under The Age Discrimination In Employment Act (ADEA) (Doc. # 34) filed September 2, 2005. For reasons set forth below, defendant's motion is overruled.

Background

Plaintiff's complaint may be summarized as follows:

Plaintiff is 63 years of age. In 1993, plaintiff applied for a position as an air traffic controller with the United States Department of Transportation/Federal Aviation Administration ("FAA"). On August 19, 2003, plaintiff learned that earlier in 2003, the FAA had hired air traffic controllers for the Kansas City Air Route Traffic Control Center ("ARTCC") in Olathe, Kansas. On September 26, 2003, plaintiff initiated an administrative complaint with the FAA, alleging that it had discriminated against him based on age when it selected other applicants in 2003. On July 29, 2004, the EEOC issued a right to sue letter.

On October 19, 2004, plaintiff filed suit against defendant, alleging age discrimination in the hiring of air traffic controllers for the Kansas City ARTCC in 2003. On March 28, 2005, defendant filed a motion to dismiss (Doc. # 7) which sought dismissal of certain claims due to plaintiff's failure to exhaust administrative remedies and the bar on liquidated damages against the United States. The Court sustained the motion in part, dismissing (1) plaintiff's claims based on FAA hiring decisions after September 26, 2003; and (2) plaintiff's claims for liquidated damages. See Memorandum And Order (Doc. # 26) filed July 29, 2005. The Court overruled defendant's motion with regard to FAA hiring decisions between January 1 and September 26, 2003. Id. On September 2, 2005, defendant filed his current motion, which seeks to dismiss plaintiff's disparate impact claims for lack of subject matter jurisdiction.

Rule 12(b)(1) Motion To Dismiss

The Court may only exercise jurisdiction when specifically authorized to do so, see Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir.1994), and must "dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking." Scheideman v. Shawnee County Bd. of County Comm'rs, 895 F.Supp. 279, 280 (D.Kan.1995) (citing Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.1974)); Fed.R.Civ.P. 12(h)(3). Plaintiff sustains the burden of showing that jurisdiction is proper, see id., and he must demonstrate that the case should not be dismissed. See Jensen v. Johnson County Youth Baseball League, 838 F.Supp. 1437, 1439-40 (D.Kan.1993).

Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction generally take two forms: facial attacks on the complaint or factual attacks on the accuracy of the allegations in the complaint. See Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir.1995). Defendant's motion to dismiss falls within the former category because the Court need not consider evidence outside the complaint.

Analysis

Defendant seeks to dismiss plaintiff's disparate impact claims for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), Fed.R.Civ.P. Specifically, defendant argues that under the federal-sector provision of the ADEA, 29 U.S.C. § 633a, the federal government has not waived sovereign immunity for such claims.

The principle of sovereign immunity defines the Court's jurisdiction to entertain a suit against the United States. FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (citing United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941)). Consent of the federal government to be sued is a prerequisite to jurisdiction. United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). In other words, absent government consent, sovereign immunity precludes suits against the federal government or its agencies. Fent v. Okla. Water Res. Bd., 235 F.3d 553, 556 (10th Cir.2000). The sovereign immunity bar even reaches claims for injunctive relief. United States v. Murdock Mach. & Eng'g Co. of Utah, 81 F.3d 922, 929 (10th Cir.1996). Consent occurs when Congress unequivocally expresses in statutory text its intent to waive sovereign immunity. Id. To sue the United States, its agencies or officers, plaintiff must allege (1) a basis for the court's jurisdiction; and (2) a specific statute that waives the government's immunity from suit. Baca v. United States, 467 F.2d 1061, 1063 (10th Cir.1972); Thomas v. Pierce, 662 F.Supp. 519, 523 (D.Kan.1987). If the government has waived sovereign immunity, the Court must strictly construe it in order to prevent an expansion beyond what Congress intended. See Pipkin v. U.S. Postal Serv., 951 F.2d 272, 275 (10th Cir.1991) (waiver in Federal Tort Claims Act).

The federal sector provision of the ADEA is a limited waiver of sovereign immunity, 29 U.S.C. § 633a; Zhu v. Fed. Hous. Fin. Bd., 389 F.Supp.2d 1253, 1291 (D.Kan.2005), and defendant argues that disparate impact claims are not within the scope of that waiver. Defendant insists that the legislative history, statutory text and treatment of Section 633a demonstrate that Congress only intended to waive sovereign immunity as to claims of intentional age discrimination.

I. Legislative History

Defendant asserts that the legislative history of Section 633a demonstrates that Congress only intended to protect federal employees from intentional discrimination based on age. Defendant argues that in contrast to Title VII, Congress did not aim to create a cause of action under Section 633a for the type of conduct that a disparate impact theory addresses. Plaintiff responds that the legislative history of Section 633a indicates an intent to create broad protection under both disparate treatment and disparate impact theories.

On March 9, 1972, Senator Lloyd Bentsen introduced a bill to extend ADEA coverage to government employment. See S. 3318, 92nd Cong., 2d Sess., 118 Cong. Rec. 7745 (1972). The Second Circuit discussed Senator Bentsen's proposals as follows:

[T]he bill did not propose a new section for claims against government employers; it simply proposed to expand the definition of employer, which would have made existing provisions of the [ADEA] applicable to claims against the government. Id. at 7746. The bill was later restructured by Senator Bentsen to remove the federal government from the general definition of employer and to place appropriate substantive provisions in a separate section similar to § 633a. Id. at 15894-95.

Bornholdt v. Brady, 869 F.2d 57, 66 (2d Cir.1989). Senator Bentsen submitted the restructured bill as an amendment to pending amendments under the Fair Labor Standards Act ("FLSA"). See 118 Cong. Rec. 15894. The amendment proposed an expansion of the term "employer" to include both state and local governments, while a separate section proposed coverage for federal employment. The FLSA bill reported by the Committee on Labor and Public Welfare, S.Rep. No. 92-842, pp. 93-94 (1972), included Senator Bentsen's amendment. As enacted, Section 633a was "patterned directly after §§ 717(a) and (b) of the Civil Rights Act of 1964 [codified at 42 U.S.C. § 2000e-16], as amended in March 1972," which similarly extended Title VII protections to federal employees. Lehman v. Nakshian, 453 U.S. 156, 166 n. 15, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981).

Section 717(a), the federal sector provision of Title VII, provides that "[a]ll personnel actions affecting employees or applicants for employment ... shall be made free from any discrimination based on race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-16(a). Congress principally added Section 717 to eradicate "entrenched discrimination in the Federal service" by strengthening internal safeguards and providing for full rights just as provided to individuals in the private sector under Title VII. H.R.Rep. No. 92-238 (1971), reprinted in 1972 U.S.C.C.A.N. 2137, 2159; see also Chandler v. Roudebush, 425 U.S. 840, 841, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976) In Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974), the Supreme Court acknowledged that the 1972 amendments to Title VII carried over and applied Title VII's substantive anti-discrimination law to the federal government. 417 U.S. at 547, 94 S.Ct. 2474. House Report 92-238 noted that:

Civil Service selection and promotion requirements are replete with artificial selection and promotion requirements that place a premium on "paper" credentials which frequently prove of questionable value as a means of predicting actual job performance. The problem is further aggravated by the [Civil Service Commission]'s use of general ability tests which are not aimed at any direct relationship to specific jobs. The inevitable consequence of this, as demonstrated by similar practices in the private sector, and, found unlawful by the Supreme Court, is that classes of persons who are culturally or educationally disadvantaged are subjected to a heavier burden in seeking employment.

1972 U.S.C.C.A.N. at 2159.

Senator Bentsen recognized that the federal sector ADEA protections would be "substantially similar" to those recently enacted in an amendment to Title VII, 118 Cong. Rec. at 24397. He cited findings by the National Council on Aging on age discrimination in the federal workplace. Keith R....