McCroan v. Bailey

• Decision Date: 29 June 1982
• Docket Number: Civ. A. No. CV181-247.
• Citation: 543 F. Supp. 1201
• Parties: Leslie P. McCROAN, Plaintiff, v. Mary K. BAILEY, Individually and as Manager, Augusta College Bookstore; Alex S. Mura, Individually, and as Director of Personnel, Augusta College; Joseph Mele, Individually, and Dean for Business and Finance, Augusta College; and Board of Regents of the University System of Georgia d/b/a Augusta College, Defendants.
• Court: U.S. District Court — Southern District of Georgia

543 F. Supp. 1201

Leslie P. McCROAN, Plaintiff, v. Mary K. BAILEY, Individually and as Manager, Augusta College Bookstore; Alex S. Mura, Individually, and as Director of Personnel, Augusta College; Joseph Mele, Individually, and Dean for Business and Finance, Augusta College; and Board of Regents of the University System of Georgia d/b/a Augusta College, Defendants.

Civ. A. No. CV181-247.

United States District Court, S. D. Georgia, Augusta Division.

June 29, 1982.

Charles L. Wilkinson, III, Augusta, Ga., for plaintiff.

Alfred L. Evans, Jr., Sr. Asst. Atty. Gen., Atlanta, Ga., for defendants.

ORDER

BOWEN, District Judge.

Leslie P. McCroan, plaintiff in this action, is a part-time cashier at the Augusta College Bookstore at Augusta College. She has held this position for approximately thirteen years, though prior to July 1, 1980, the position was full-time. It is the plaintiff's contention that the change in the cashier's position, along with the concomitant reduction in wages and benefits, is part of an overall effort by the defendants to force her into retirement due solely to her age. She is presently sixty-eight years old. From her complaint, brought in two counts, the following allegations are presented. They will be taken as true for present purposes only.

At the time plaintiff turned sixty-five, she was asked by defendant Mary K. Bailey, manager of the bookstore and plaintiff's immediate supervisor, about her retirement plans. Plaintiff responded she intended to work as long as possible until she had accumulated fifteen years of service with the university system.¹ From that time on, defendant Bailey has conducted a campaign design to force the plaintiff to leave her job. The campaign has consisted of accusations of theft, incompetence, slowness, culpability for cash register errors, unfair work evaluations and ostracism by fellow employees encouraged by Bailey.

In June of 1980 plaintiff was informed by Mary Bailey that the cashier's position was being downgraded from full-time to part-time, ostensibly for budgetary reasons. Three students, however, were hired on a part-time basis to work the times no longer scheduled for the plaintiff. Moreover, on July 1, 1980, there were approximately six full-time positions at the bookstore with plaintiff enjoying seniority over all but one. Her position was the only position changed.

The effect of Bailey's actions was exacerbated by the lack of action on the parts of defendants Alex S. Mura and Joseph Mele. Defendant Mura is the director of personnel at Augusta College and is its equal employment compliance officer. He is charged with the responsibility of insuring adherence to laws proscribing employment discrimination. He was approached by plaintiff who filed a grievance with him over Bailey's conduct. Mura, however, failed to take any corrective measures although it was his duty and responsibility to prevent the continuation of any discriminatory behavior. As for Joseph Mele, who as Comptroller and Dean for Business and Finance at Augusta College is responsible for the operation of the bookstore, it is alleged he was aware of Bailey's conduct and failed to take corrective action although such action was within the authority of his office.

Thus, it is plaintiff's contention that she has been discriminated against on the basis of her age alone. Her complaint is brought in two counts based on these actions. Count I alleges the defendants violated the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621, et seq. Count II is brought pursuant to 42 U.S.C. § 1983 against all defendants.²

Three motions to dismiss filed by the defendants are before the Court. The first motion is brought by all the defendants and seeks dismissal of the complaint on the ground that the complaint as a whole, and each count taken individually, fails to state a claim upon which relief can be granted. The second motion to dismiss, brought by defendants Bailey, Mura, and Mele, is directed at Count I and is predicated upon two grounds: a) the Court is without jurisdiction over the person of these particular defendants, and b) it fails to state a claim against them upon which relief can be granted. The third motion is raised by defendant Board of Regents (the Board). The Board seeks its dismissal from Count II of the complaint on the grounds that the Court is without subject-matter jurisdiction as to this defendant by virtue of the eleventh amendment of the United States Constitution and Count II fails to state a claim against the Board upon which relief can be granted.

Each motion shall be reviewed separately in their order of appearance.

FIRST MOTION

The defendants' first motion asserts the complaint does not state a claim for relief. The principal argument in support of this position is the application of the Age Discrimination in Employment Act of 1967, as amended (ADEA), 29 U.S.C. § 621 et seq., the foundational statute for plaintiff's complaint, to the state and its agencies is inconsistent with the limitations and concepts of federalism embodied in the Tenth and Eleventh Amendments to the United States Constitution. Defendants also argue the no claim for relief is stated by the invocation of 42 U.S.C. § 1983 in Count II inasmuch as section 1983 depends upon the existence of a cause of action under the ADEA for its viability and since the ADEA is inapplicable, no jurisdictional basis for a section 1983 action exists. Moreover, even if the ADEA did provide a cause of action in this case, the section 1983 claim would still fail as the ADEA provides for its own remedy.

Before addressing the arguments raised by the parties with regard to this motion, a review of pertinent provisions of the ADEA cited by the plaintiff in the complaint will aid in the understanding of the positions of the parties.

The congressional purpose behind the passage of the ADEA was to "promote employment of older persons based on their ability rather than age." The Congress recognized that the existence of age discrimination in employment "burdens commerce and the free flow of goods in commerce." 29 U.S.C. § 621(a)(4), (b); See 1967 U.S. Code Cong. & Ad.News 2213 et seq. By way of this act, Congress prohibited certain practices of age discrimination. 29 U.S.C. § 623. Under section 623(a), the relevant provision in this case, it is unlawful for an employer:

1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age;

2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise affect his status as an employee, because of such individual's age; or

3) to reduce the wage rate of any employee in order to comply with this chapter.

An employer, however, is not totally fettered from exercising control over employment related policies and activities. Section 623(f) provides an escape from the prohibitions of the ADEA under circumstances where age is a bona fide occupational qualification or where actions taken with regard to a person's employment are based on reasonable factors other than age. Employers may also observe the terms of a bona fide seniority system or benefit plan so long as such a plan is not a device for circumventing the purposes and proscriptions of the ADEA. The employer is allowed to discharge or discipline an employee when good cause exists.

The ADEA defines an "employer" as a person who is engaged in an industry affecting commerce and employs twenty or more employees for each working day over a prescribed period of time. The term also includes "... (1) any agent of such person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State ..." 29 U.S.C. § 630(b).

The scope of the ADEA is limited by age. Section 631 provides that the protected class shall consist of individuals who are at least forty years of age but less than seventy years of age. 29 U.S.C. § 631(a) (1981 Supp.).

Under the ADEA, the Secretary of Labor is empowered to make investigations and institute civil actions for violations of the act. 29 U.S.C. § 626. Private individuals may also bring civil actions. Before this right can be exercised, the aggrieved citizen must file, sixty days prior to bringing suit, a charge of discrimination with the Secretary of Labor. If the Secretary first initiates a suit, an individual's right to sue is then foreclosed. 29 U.S.C. § 626(c), (d) (1981 Supp.). A potential litigant is not limited to federal court but, under section 626(c), may file the case in state court. Thus, state and federal courts enjoy concurrent jurisdiction over ADEA suits.

Defendants assert that the ADEA and its extension to the states was an exercise of congressional authority under the commerce clause of the United States Constitution.³ Defendants argue that the extension of the ADEA to the States was beyond the commerce clause power of congress under the limiting principles of federalism embodied in the tenth amendment to the federal constitution.⁴ In support of this proposition, defendants rely on National League of Cities, et al. v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976). On the other hand, plaintiff argues that the ADEA is grounded upon section 5 of the fourteenth amendment of the federal constitution which is not limited by the tenth amendment. Because the Court finds that the ADEA's extension to the states was a proper exercise of commerce clause authority within the ambit of the holding in National League, it is unnecessary to address the issue of whether the ADEA is a fourteenth amendment, section 5 exercise of congressional power.⁵

National League of Cities et al. v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), involved...