MacPherson v. University of Montevallo

• Citation: 938 F. Supp. 785
• Decision Date: 09 September 1996
• Docket Number: Civil Action No. 94-AR-2962-S.
• Parties: Roderick MacPHERSON, et al., Plaintiff, v. UNIVERSITY OF MONTEVALLO, Defendant.
• Court: U.S. District Court — Northern District of Alabama

938 F. Supp. 785

Roderick MacPHERSON, et al., Plaintiff, v. UNIVERSITY OF MONTEVALLO, Defendant.

Civil Action No. 94-AR-2962-S.

United States District Court, N.D. Alabama, Southern Division.

September 9, 1996.

David R. Arendall, Birmingham, AL, for plaintiffs.

William F. Gardner, Cabaniss Johnston Gardner Dumas & O'Neal, Birmingham, AL, Carl E. Johnson, Jr., Bishop Colvin Johnson & Kent, Birmingham, AL, for defendant.

Douglas A. Hedin, Minneapolis, MN, for National Employment Lawyers Association, amicus.

MEMORANDUM OPINION

ACKER, District Judge.

Now before the court is a motion to dismiss filed in the above-styled action by defendant, University of Montevallo, on July 25, 1996. The motion was filed pursuant to Rule 12(b)(1), Fed.R.Civ.P.¹ Plaintiffs, Roderick MacPherson and Marvin Narz, allege that defendant has violated the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. ("ADEA"), as well as, plaintiffs' right to freedom of speech guaranteed by the First Amendment. Plaintiffs consent to the dismissal of their First Amendment claims. Accordingly, the only issue in contention for this motion to dismiss is whether the University of Montevallo, as an instrumentality of the State of Alabama,² is entitled to Eleventh Amendment immunity. Because defendant has demonstrated that it is entitled to Eleventh Amendment immunity, this court lacks subject matter jurisdiction over the ADEA claim, and defendant's motion to dismiss is due to be granted.

FACTS

Plaintiffs, MacPherson and Narz, allege that they are employed by defendant as associate professors and have been subjected to discrimination based upon their age. MacPherson and Narz aver that they are 49 and 50 years old respectively. Plaintiffs allege that defendant has engaged in a pattern and practice of discrimination against them and a continuing practice of treating younger faculty members more favorably than older faculty members with regard to salaries and promotions. Furthermore, plaintiffs aver that defendant has used an age-based evaluation system to discriminate against plaintiffs with regard to promotions, assignments, benefits and salaries.

Plaintiffs further allege that defendant has retaliated against them based upon previous EEOC charges and a previous lawsuit against same defendant for age discrimination, CV 88-B-1341-S. Plaintiffs allege that the previous lawsuit was settled and is subject to a confidentiality agreement. Plaintiffs claim that defendant has engaged in a continuing practice of discrimination and retaliation against them.

ANALYSIS

In Count I, MacPherson and Narz allege that the University of Montevallo discriminated against them in violation of the antidiscrimination provisions of the ADEA. MacPherson and Narz are clearly within the class of persons protected by the ADEA. See 29 U.S.C. § 631(a) (1996). Because the relevant section of the ADEA makes it illegal "for an employer to ... discriminate against any individual ... because of such individual's age," 29 U.S.C. § 623(a)(1), MacPherson and Narz have the statutory foundation for an ADEA claim.³ As a result, the court must determine whether the Eleventh Amendment immunizes defendant from plaintiffs' ADEA claims.⁴

When determining if the Eleventh Amendment immunizes a particular governmental entity from suit in federal court, the court must proceed through a multi-tiered analysis. First, the court must determine if the governmental entity is the alter-ego of or an arm of the state and therefore entitled to Eleventh Amendment immunity. See, e.g., Harden v. Adams, 760 F.2d 1158 (11th Cir.), cert. denied sub nom. Grimmer v. Harden, 474 U.S. 1007, 106 S.Ct. 530, 88 L.Ed.2d 462 (1985). Even if the court determines that the entity falls within the purview of the Eleventh Amendment, the states' immunity is not absolute. Next, the court must apply the second and third steps to determine if the state entity has waived its Eleventh Amendment immunity and/or whether Congress has lawfully abrogated the states' collective Eleventh Amendment immunity. See Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). If Eleventh Amendment immunity is not waived or expressly abrogated, then the Eleventh Amendment serves as a jurisdictional bar to suit. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984).

In the instant action, neither side disputes that the University of Montevallo is an instrumentality of the state. In fact, the issue of whether Universities of the state of Alabama are instrumentalities of the state has already been litigated and decided. See Harden, 760 F.2d at 1163-1164 (stating that the Alabama Supreme Court has held that Alabama universities are instrumentalities or agencies of the state). Accordingly, the University of Montevallo is entitled to whatever protection the Eleventh Amendment provides.

Next, the court must turn to step two of the analysis and determine if the University of Montevallo waived its immunity and consented to the present action. The court determines that the University has not waived its Eleventh Amendment immunity in the instant action. Section 14 of the Alabama Constitution states, "the State of Alabama shall never be made a defendant in any court of law or equity." Ala.Const. of 1901, § 14 (1975). Accordingly, Alabama has expressly reserved its sovereign immunity.

Now the court must proceed through the third step of the multi-tiered analysis, namely, whether or not Congress has expressly abrogated the University's immunity. In order to determine if Congress has successfully abrogated the States' Eleventh Amendment immunity, the court must conduct a two-part inquiry. First, the court must determine that the "evidence of congressional intent to abrogate is both unequivocal and textual." Dellmuth v. Muth, 491 U.S. 223, 230, 109 S.Ct. 2397, 2401, 105 L.Ed.2d 181 (1989). Second, the court must determine whether "Congress possessed the power under the Constitution to abrogate the states' Eleventh Amendment sovereign immunity." Seminole Tribe of Florida v. State of Florida, 11 F.3d 1016, 1024 (11th Cir. 1994), aff'd, ___ U.S. ___, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996).

In addressing Congress' intent to abrogate the states' sovereign immunity through the ADEA, the court concludes that Congress clearly and unmistakably intended to abrogate the States' Eleventh Amendment immunity. Congress expressed its intention by including in the ADEA's definition of "employer" a "State and any ... agency or instrumentality of a State ..." 29 U.S.C. § 626(b) (1996). Furthermore, numerous district and circuit courts have come to the same conclusion on the issue of Congress' intent. See, e.g., Hurd v. Pittsburg State Univ., 29 F.3d 564, 564-65 (10th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 321, 130 L.Ed.2d 282 (1994); Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694, 700-01 (1st Cir. 1983).

The next hurdle is the one plaintiffs fail to clear: Does Congress have the power under the United States Constitution to abrogate the states' Eleventh Amendment immunity? The Supreme Court has recently reiterated that Congress cannot invade Eleventh Amendment immunity except "pursuant to a valid exercise of power" conferred by the Constitution. Seminole Tribe, ___ U.S. at ___, 116 S.Ct. at 1123. In determining the sources of power, the Supreme Court had previously found that Congress possessed the power to abrogate the states' sovereign immunity when legislating pursuant to § 5 of the Fourteenth Amendment and the Commerce Clause. See id.; see also Fitzpatrick, 427 U.S. 445, 96 S.Ct. 2666; Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989) (holding that Congress could abrogate the Eleventh Amendment pursuant to the Commerce Clause). However, the Supreme Court in Seminole Tribe overruled its plurality decision in Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, where the Supreme Court held that Congress could abrogate the Eleventh Amendment pursuant to the Commerce Clause, by stating that "we feel bound to conclude that Union Gas was wrongly decided and that it should be, and now is, overruled." Seminole Tribe, ___ U.S. at ___, 116 S.Ct. at 1128.

As a result of the Supreme Court decision in Seminole Tribe, the foundation for ADEA cases against states and state entities entitled to Eleventh Amendment immunity has been removed. In Seminole Tribe, the Court, among other things, held that Congress cannot abrogate the Eleventh Amendment immunity enjoyed by the State when enacting legislation pursuant to the Commerce Clause. Id. at ___ - ___, 116 S.Ct. at 1131-32. Thus, if the ADEA was enacted by Congress only pursuant to that body's legislative power granted under the Commerce Clause, the University of Montevallo enjoys absolute immunity to MacPherson's and Narz's ADEA claim.

As Seminole Tribe makes clear, Congress only has the power to abrogate Eleventh Amendment immunity when enacting legislation pursuant to § 5 of the Fourteenth Amendment. Consequently, the determinative inquiry before this court is whether the ADEA was a valid exercise of that Congressional power. More specifically, because the ADEA as originally enacted in 1967 did not reach state employees, the focus of this court's attention is whether the 1974 Amendments to the ADEA, which extended coverage of the ADEA to state governments in 29 U.S.C. § 630(b)(2), were passed pursuant to § 5 of the Fourteenth Amendment.

Prior to Seminole Tribe, the Supreme Court had held only that the ADEA was a valid exercise of Congress' powers under the Commerce Clause. Equal Employment Opportunity Commission v. Wyoming, 460 U.S. 226, 235-44, 103 S.Ct. 1054, 1059-1064, 75 L.Ed.2d 18 (1983). In a five — four majority opinion authored by Justice Brennan, the Court expressly left open the question of whether that same conclusion could be reached under § 5 of the Fourteenth Amendment. Id. at 243, 103 S.Ct. at 1064.⁵...