Okruhlik v. University of Arkansas

• Decision Date: 13 April 2001
• Docket Number: 00-3460,UNITED,PLAINTIFFS-APPELLEE,DEFENDANT-APPELLAN,PLAINTIFF-APPELLEE,WILLIAM,DEFENDANTS-APPELLANTS,00-3896,Nos. 00-3159,s. 00-3159
• Citation: 255 F.3d 615
• Parties: (8th Cir. 2001) GWENN OKRUHLIK,, UNITED STATES, INTERVENOR ON APPEAL, v. THE UNIVERSITY OF ARKANSAS, BY AND THROUGH THE CHAIRMAN OF THE BOARD OF TRUSTEES, J. THOMAS MAY, AND ITS PRESIDENT, B. ALLEN SUGG; DONALD O. PEDERSON, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; BERNARD L. MADISON, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; MARK CORY, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; ADNAN HAYDAR, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; MOUNIR FARAH, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; STEVEN NEUSE, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; DONALD KELLEY, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; JEFF RYAN, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; TODD SHIELDS, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; CONRAD WALIGORSKI, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY,, ESTER LUNNIE; DOROTHY ROBINSON; JEAN CROCKETT; GAYLE D. PORTIS,STATES OF AMERICA, INTERVENOR ON APPEAL, v. UNIVERSITY OF ARKANSAS BOARD OF TRUSTEES, A BODY POLITIC AND CORPORATE;E. CLARK, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF TRUSTEES; FRANCES A. CRANFORD, IN HER INDIVIDUAL AND OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF TRUSTEES; GARY C. GEORGE, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF TRUSTEES; JOE L. HARGROVE, M.D., IN HIS INDIVIDUAL AND OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF TRUSTEES; JAMES E. LINDSEY, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF TRUSTEES; J. THOMAS MAY, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF TRUSTEES; FRANK W. OLDHAM, JR., JR., IN HIS INDIVIDUAL AND OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF TRUSTEES; NED RAY PURTLE, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF TRUSTEES; STANLEY REED, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF TRUSTEES; CHARLES E. SCHARLAU, III, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF TRUSTEES; BOBBY JUSTUS, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY AS BUSINESS MANAGER FOR PATIENT CAR
• Court: U.S. Court of Appeals — Eighth Circuit

Page 615

255 F.3d 615 (8th Cir. 2001)

GWENN OKRUHLIK, PLAINTIFF-APPELLEE, UNITED STATES, INTERVENOR ON APPEAL, v. THE UNIVERSITY OF ARKANSAS, BY AND THROUGH THE CHAIRMAN OF THE BOARD OF TRUSTEES, J. THOMAS MAY, AND ITS PRESIDENT, B. ALLEN SUGG; DONALD O. PEDERSON, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; BERNARD L. MADISON, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; MARK CORY, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; ADNAN HAYDAR, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; MOUNIR FARAH, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; STEVEN NEUSE, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; DONALD KELLEY, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; JEFF RYAN, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; TODD SHIELDS, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; CONRAD WALIGORSKI, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY, DEFENDANTS-APPELLANTS, ESTER LUNNIE; DOROTHY ROBINSON; JEAN CROCKETT; GAYLE D. PORTIS, PLAINTIFFS-APPELLEES, UNITED STATES OF AMERICA, INTERVENOR ON APPEAL, v. UNIVERSITY OF ARKANSAS BOARD OF TRUSTEES, A BODY POLITIC AND CORPORATE; DEFENDANT-APPELLANT, WILLIAM E. CLARK, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF TRUSTEES; FRANCES A. CRANFORD, IN HER INDIVIDUAL AND OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF TRUSTEES; GARY C. GEORGE, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF TRUSTEES; JOE L. HARGROVE, M.D., IN HIS INDIVIDUAL AND OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF TRUSTEES; JAMES E. LINDSEY, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF TRUSTEES; J. THOMAS MAY, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF TRUSTEES; FRANK W. OLDHAM, JR., JR., IN HIS INDIVIDUAL AND OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF TRUSTEES; NED RAY PURTLE, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF TRUSTEES; STANLEY REED, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF TRUSTEES; CHARLES E. SCHARLAU, III, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF TRUSTEES; BOBBY JUSTUS, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY AS BUSINESS MANAGER FOR PATIENT CARE SERVICES FOR THE UNIVERSITY OF ARKANSAS FOR MEDICAL SCIENCES, DEFENDANTS, LINDA SCHILCHER, PLAINTIFF-APPELLEE, v. BOARD OF TRUSTEES OF THE UNIVERSITY OF ARKANSAS; DONALD O. PEDERSON, VICE CHANCELLOR OF ACADEMIC AFFAIRS; BERNARD L. MADISON, DEAN OF THE COLLEGE OF ARTS AND SCIENCES; MARK CORY, ASSOCIATE DEAN FOR INTERNATIONAL PROGRAMS; HOYT PURVIS, DIRECTOR OF THE FULBRIGHT INSTITUTE FOR INTERNATIONAL RELATIONS; ADNAN HAYDAR, DIRECTOR OF THE KING FAHD PROGRAM FOR MIDDLE EAST STUDIES; MOUNIR FARAH, ASSOCIATE DIRECTOR OF THE KING FAHD PROGRAM FOR MIDDLE EAST STUDIES, EACH IN THEIR OFFICIAL AND PERSONAL CAPACITIES, DEFENDANTS-APPELLANTS.

Nos. 00-3159, 00-3460, 00-3896

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: April 13, 2001

Filed: June 20, 2001

Appeals from the United States District Court for the Western District of Arkansas. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Wollman, Chief Judge, Magill, and Murphy, Circuit Judges.

Murphy, Circuit Judge.

These three interlocutory appeals present the issue of whether Eleventh Amendment immunity bars Title VII claims against a state. The cases were brought by two professors and several administrative staff against the University of Arkansas, through its board of trustees and individual state officials, for sex and race discrimination and harassment under Title VII and state law. In each case the district court¹ ruled that the Title VII claims were not barred by the Eleventh Amendment. The state of Arkansas appealed, and the United States intervened in two of the cases. We affirm.

I.

Gwenn Okruhlik, a tenure track professor of political science and member of the Middle East Studies Program (MES), sued the University trustees and various state officials in their individual and official capacities for disparate treatment and impact discrimination on the basis of her gender. She also claimed that she was subjected to hostile workplace harassment and retaliation and that Arkansas had violated the Constitution and state law. In support of her claims, Okruhlik set out detailed factual allegations claiming that male colleagues, including Bernard L. Madison, Dean of the College of Arts and Sciences, had made discriminatory and sexually derogatory statements and conspired to discredit her work. Okruhlik also alleged that she was subjected to more stringent tenure review than her male colleagues.

Linda Schilcher, a professor of history and member of MES, sued the University trustees and state officials in their individual and official capacities for disparate treatment on the basis of race and gender and hostile environment sexual harassment, in violation of Title VII and the Arkansas Civil Rights Act. She also alleged violations of the Constitution and other state law. Schilcher alleged that she was discriminated against in terms of her employment, especially in allocation of professional funding, and that she repeatedly received disparaging comments because of her race and gender. Schilcher claims that Dean Madison demanded that her tenure review be negative and that the director of MES placed a false letter in her file.

Administrative staff members Ester Lunnie, Dorothy Robinson, Jean Crockett, and Gayle Portis sued the board of trustees and school officials in their official and individual capacities, alleging racial discrimination in violation of Title VII, 42 U.S.C. § 1981, 42 U.S.C. § 1983, and the Fourteenth Amendment. They alleged that Arkansas denied them promotions and terminated them due to their race and provided them less favorable working conditions than white employees. Lunnie and Robinson also alleged that they were retaliated against for filing an EEOC complaint.

In each case Arkansas filed a motion to dismiss, arguing that the Eleventh Amendment barred all Title VII claims. Arkansas asserted in addition that the state claims of Okruhlik and Schilcher were barred by the Eleventh Amendment and state immunity and that Schilcher had failed to state a claim upon which relief could be granted. The district court held that the Title VII claims were not barred because Congress had validly abrogated the states's Eleventh Amendment immunity. The state claims against the officials in their individual capacity were not dismissed because they satisfied the malice exception to Arkansas immunity law. The court also found that Schilcher had stated a claim.

The Arkansas defendants filed three interlocutory appeals, arguing that the Eleventh Amendment bars Title VII claims against the state, that Arkansas law bars the pendent state claims, and that Schilcher did not state a claim. The plaintiffs and the United States respond that Congress abrogated the Eleventh Amendment in enacting Title VII, and the professors further argue that their state law claims satisfy the malice exception to immunity and that we lack jurisdiction at this point on whether Schilcher has stated a claim.

II.

Appellate review is generally not available until after final judgment except for immunity issues and issues "inextricably intertwined" with those properly before the court at the interlocutory stage. Entergy, Arkansas, Inc. v. Nebraska, 241 F.3d 979, 987 (8th Cir. 2001) (citation omitted). An issue is "inextricably intertwined" with immunity issues "'only if [it] is coterminous with, or subsumed in, the claim before the court on interlocutory appeal--that is, when the appellate resolution of the collateral appeal necessarily resolves the pendent claims as well.'" Kincade v. City of Blue Springs, Mo., 64 F.3d 389, 394 (8th Cir. 1995) (citation omitted). The parties agree that rulings on immunity are reviewable by this court de novo. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144-45 (1993); Salve Regina Coll. v. Russell, 499 U.S. 225, 231 (1991). All parties also agree that the issues of Eleventh Amendment immunity are properly before the court on these appeals.

Arkansas argues that claims of disparate treatment and disparate impact discrimination under Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972 (1972 Act) and the Civil Rights Act of 1991(1991 Act), are barred by the Eleventh Amendment.² Arkansas contends that Congress did not abrogate the Eleventh Amendment in these statutes because it did not make an unmistakably clear expression of its intent to do so in the 1972 Act or in the 1991 Act. Arkansas asserts that Congress also did not act pursuant to a valid grant of authority. Intervenor United States and appellees respond that these issues have already been decided by the Supreme Court and the Eighth Circuit, and that Congress validly abrogated the state's Eleventh Amendment immunity.

The Eleventh Amendment provides that "[t]he 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 . . . ." The University of Arkansas has been recognized to have Eleventh Amendment immunity. See Assad-Faltas v. University of Ark. For Med. Servs., 708 F.Supp. 1026 (E.D. Ark. 1989), affirmed, 902 F.2d 1572 (8th Cir. 1990). Congress may abrogate such immunity, however, if it "unequivocally expresse[s] its intent to abrogate," by "a clear legislative statement," and it acted "pursuant to a valid exercise of power." Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55 (1996) (citation omitted).

A.

The Supreme Court addressed Title VII abrogation in Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). In Fitzpatrick the Court stated that in 1972 "Congress, acting under § 5 of the Fourteenth Amendment, authorized federal courts to award money damages . . . against a state government . . . ." Id at 447. The Court distinguished prior cases...