Pease v. University of Cincinnati Medical Center, C-1-96-167.

• Decision Date: 17 April 1998
• Docket Number: No. C-1-96-167.,C-1-96-167.
• Citation: 6 F.Supp.2d 706
• Parties: Phyllis PEASE, Plaintiff, v. UNIVERSITY OF CINCINNATI MEDICAL CENTER, Defendant.
• Court: U.S. District Court — Southern District of Ohio

6 F.Supp.2d 706

Phyllis PEASE, Plaintiff, v. UNIVERSITY OF CINCINNATI MEDICAL CENTER, Defendant.

No. C-1-96-167.

United States District Court, S.D. Ohio, Western Division.

April 17, 1998.

Mark Joseph Byrne, Jacobs, Kleinman, Seibel & McNally, Cincinnati, OH, for Plaintiff.

Robert Bowman Craig, Taft, Stettinius & Hollister, Cincinnati, OH, for Defendant.

ORDER DENYING DEFENDANT'S MOTION TO DISMISS

SPIEGEL, Senior District Judge.

This matter is before the Court on Defendant University of Cincinnati Medical Center's motion to dismiss (doc. 3), to which Plaintiff Phyllis Pease responded (doc. 6) and Defendant replied (doc. 8).

BACKGROUND

On February 16, 1996, Plaintiff Phyllis Pease filed this action against Defendant University of Cincinnati Medical Center, alleging that Defendant discriminated against her in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. (doc. 10.) On July 24, 1997, Defendant filed a motion to dismiss Plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(1), asserting that this Court lacks jurisdiction to adjudicate this action. Specifically, Defendant asserts that the Eleventh Amendment to the United States Constitution bars Plaintiff from bringing such an action against Defendant because Defendant is an instrumentality of the State of Ohio. Plaintiff asserts that this Court should reject Defendant's motion, arguing that Congress properly expressed its intention to abrogate the states' immunity when it amended the ADEA in 1974 in order to enable a private citizen to file suit against a state agency.

DISCUSSION

The Eleventh Amendment of the United States Constitution provides,

[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, or by Citizens or Subjects of any Foreign State.

U.S. Const. amend. XI. While a literal reading of the Eleventh Amendment indicates that a suit brought by a private person against a State in federal court would be barred, federal courts recognize that the bar is not absolute. Timmer v. Michigan Dep't of Commerce, 104 F.3d 833, 836 (6th Cir. 1997) (citing Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304, 110 S.Ct. 1868, 109 L.Ed.2d 264 (1990)). "States may consent to be sued in federal court or Congress may abrogate their sovereign immunity." Id. Defendant, University of Cincinnati Medical Center, is an instrumentality of the State of Ohio as defined in Ohio Revised Code § 2744.01, et seq. The Parties do not dispute that the State of Ohio has not consented to be sued in federal court, therefore the question of state consent is moot. In regards to the second avenue by which a private person may bring suit, Defendant argues that Plaintiff cannot show that Congress has abrogated the states' Eleventh Amendment immunity and therefore Plaintiff's action should be dismissed in its entirety.

The United States Supreme Court decision in Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) was a significant departure from the way courts previously viewed Congress' approach to abrogating states' immunity under the Eleventh Amendment. Before Seminole Tribe, Congress could validly abrogate the states' Eleventh Amendment immunity by either enacting a statute pursuant to its powers under the Interstate Commerce Clause, Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989), or § 5 of the Fourteenth Amendment to the United States Constitution, Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). Subsequently in Seminole Tribe, the Supreme Court expressly overruled Union Gas Co., concluding that Congress' authority under the Commerce Clause was not a viable source for abrogating the states' Eleventh Amendment immunity. Seminole Tribe, 517 U.S. at 66, 116 S.Ct. 1114. The Court stated that the powers granted to Congress in Article I of the Constitution could not be used to expand federal court jurisdiction under Article III at the expense of the states' Eleventh Amendment immunity. Id. at 72-73, 116 S.Ct. 1114. Although renouncing Congress' power under the Commerce Clause to abrogate the states' immunity, the Court reaffirmed its position that Congress could properly abrogate the states' immunity pursuant to statutes enacted under § 5 of the Fourteenth Amendment. Id. at 65-73, 116 S.Ct. 1114. Accordingly, when Congress chooses to abrogate the states' Eleventh Amendment immunity Congress must: 1) make an unequivocal expression of its intent to do so, and 2) act pursuant to a valid exercise of congressional power. Id. at 56-58, 116 S.Ct. 1114.

The issues before the Court, then, is whether Congress made a clear expression of its intent to abrogate states' immunity when it passed the amendment to the ADEA and whether Congress acted pursuant to valid exercise of congressional power.

I. Whether Congress made a clear expression of its intent to abrogate states' Eleventh Amendment immunity.

When the ADEA was originally enacted in 1967, it did not apply to the federal government, the states, or their political subdivisions. EEOC v. Wyoming, 460 U.S. 226, 233, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983). However, in 1974, Congress extended the ADEA to allow for private causes of action against federal, state, and local governments. Id. at 233 & n. 5, 103 S.Ct. 1054; see also Fair Labor Standards Amendments of 1974, Pub.L. No. 93-259, § 28, 88 Stat. 74 (amending 29 U.S.C. § 630). The ADEA makes it unlawful for an "employer" "to discharge any individual" who is at least 40 years old "because of such individual's age." 29 U.S.C. §§ 623(a), 631(a). Under the 1974 amendment, the term "employer" is defined to include "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)(2). Therefore, we find that such an explicit reference to the State as a potential defendant represents an unequivocal expression of Congress' intent to abrogate states' Eleventh Amendment immunity with respect to suits brought under the ADEA. See Gregory v. Ashcroft, 501 U.S. 452, 467, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) (recognizing that the ADEA extended to employment by state and local governments); Wyoming, 460 U.S. at 243-44, 103 S.Ct. 1054 (stating that "there is no doubt what the intent of Congress was: to extend the application of the ADEA to the states."); Hurd v. Pittsburgh State Univ., 29 F.3d 564, 564-65 (10th Cir.1994) (affirming district court's finding that Congress intended to abrogate states' Eleventh Amendment immunity when it passed the ADEA); Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694, 701 (1st Cir.1983) (declaring that "the ADEA's express authorization for the maintenance of suits against state employers comprises adequate evidence to demonstrate congressional will that Eleventh Amendment immunity be abrogated.").

Therefore, the ultimate question for this Court to decide is whether Congress' abrogation of the states' Eleventh Amendment immunity in the 1974 amendment to the ADEA was a valid exercise of Congress' authority under § 5 of the Fourteenth Amendment. Defendant asserts that Congress could not validly act on its purported intent under the Constitution, because the extension of the ADEA to the states was pursuant to the Interstate Commerce Clause, not § 5 of the Fourteenth Amendment.

II. Whether Congress acted pursuant to § 5 of the Fourteenth Amendment when it amended the ADEA in 1974.

Although this issue has rapped on the chamber door of the Supreme Court on at least two separate occasions, the Court has chosen to ignore the knocks. For instance, the Court sidestepped the issue in Wyoming, supra, stating that "[t]he extension of the ADEA to cover state and local governments, ... was a valid exercise of Congress' powers under the Commerce Clause. We need not decide whether it could also be upheld as an exercise of Congress' powers under § 5 of the Fourteenth Amendment." Wyoming, 460 U.S. at 243, 103 S.Ct. 1054 (holding that the extension of the ADEA to the states was a valid exercise of congressional power under the Commerce Clause, yet leaving unresolved the Fourteenth Amendment question). The Court had another opportunity to answer the rap in Gregory, supra; however, the Court simply acknowledged its previous reservation of the Fourteenth Amendment question in Wyoming, and then addressed only the Commerce Clause. Gregory, 501 U.S. at 468, 111 S.Ct. 2395 (holding that Missouri's mandatory retirement requirement for state judges does not violate the ADEA).

Nevertheless, Defendant argues the Supreme Court has resolved the issue. In particular, Defendant asserts that Justice Burger's dissenting opinion in Wyoming (which is joined by Justices Powell, Rehnquist and O'Connor), coupled with the concurring opinion of Justice Stevens, clearly shows that a majority of the Court concluded that the 1974 ADEA amendment could only have been adopted pursuant to Congress' authority under the Commerce Clause. In support of its argument, Defendant points to Justice Stevens' concurring opinion, which states:

[i]n final analysis, we [the Court] are construing the scope of the power granted to Congress by the Commerce Clause of the Constitution.

Wyoming, 460 U.S. at 244, 103 S.Ct. 1054 (Stevens J., concurring). Defendant suggests that Justice Stevens' concurrence is an emphasis of his reliance on Congress having enacted the 1974 ADEA amendment pursuant only to Congress' authority under the Commerce Clause. Contrary to Defendant's proposition, the Supreme Court has not specifically answered the question of whether Congress acted under the Fourteenth Amendment in amending the ADEA. The language used by Justice Stevens is insufficient to show that he agreed with the four Justices in the dissent who indicated that the ADEA was enacted pursuant to only the...