STATE EMPLOYEES'ASS'N OF NEW HAMPSHIRE v. Lang

• Citation: 682 F. Supp. 660
• Decision Date: 17 February 1988
• Docket Number: Civ. No. 82-374-D.
• Parties: The STATE EMPLOYEES' ASSOCIATION OF NEW HAMPSHIRE, INC.; Thomas J. Goulette; Elizabeth Hamlin-Morin v. Roy Y. LANG, individually and as Director, New Hampshire Department of Personnel, et al.
• Court: U.S. District Court — District of New Hampshire

682 F. Supp. 660

The STATE EMPLOYEES' ASSOCIATION OF NEW HAMPSHIRE, INC.; Thomas J. Goulette; Elizabeth Hamlin-Morin v. Roy Y. LANG, individually and as Director, New Hampshire Department of Personnel, et al.

Civ. No. 82-374-D.

United States District Court, D. New Hampshire.

February 17, 1988.

Robert T. Clark, Concord, N.H., for plaintiff.

Daniel J. Mullen, Asst. Atty. Gen., Concord, N.H., for defendant.

ORDER

DEVINE, Chief Judge.

Plaintiffs State Employees' Association of New Hampshire, Inc., Thomas J. Goulette, and Elizabeth Hamlin-Morin hereinafter collectively referred to as "SEA" bring this civil rights action on behalf of certain New Hampshire state academic employees against the State of New Hampshire ("State") and twenty-three state officials in their official and personal capacities. SEA alleges plaintiffs have been deprived of their equal protection rights under the Fourteenth Amendment to the United States Constitution. Jurisdiction of the Court is alleged under 42 U.S.C. §§ 1983 and 1988, and under 28 U.S.C. §§ 1331 and 1343(a)(3), (4).

SEA claims that the academic employees have been denied equal pay for equal work. Apparently, certain academic employees assigned to state salary Schedules B or C have been paid less than other academic employees who are assigned to Schedule A, even though all have the same job classification and have performed the same work. Plaintiffs seek damages, injunctive relief, and attorney fees, as well as class action certification on behalf of all affected academic employees pursuant to Rules 23(a), (b)(1)(A), (b)(2) and (b)(3), Fed.R.Civ.P. Currently before the Court is defendants' motion to dismiss, Rule 12(b)(6), Fed.R. Civ.P., and SEA's objection thereto.

Background¹

In 1982 this Court issued an Order abstaining from further consideration of plaintiffs' section 1983 action pending state court determination of whether or not the three pay scales for academics based solely on date of hire violated New Hampshire law. Order (October 27, 1982). In the interim, the New Hampshire Supreme Court refused to force the Personnel Commission to administer all of SEA's equal pay claims in a class action. Petition of the SEA of NH, Inc. (New Hampshire Personnel Commission), 127 N.H. 89, 91, 497 A.2d 860 (1985). Also, in March 1986 the New Hampshire Legislature amended the 1979 law which had codified the three pay schedules at issue. New Hampshire Revised Statutes Annotated ("RSA") 99:1-a (Supp.1986). Finally, the New Hampshire Supreme Court ruled in July 1987 that although differential pay scales do not violate the state's constitution, they violate a 1986 statute, RSA 98:13 XIII (current version at RSA 21-I:42 II), and the New Hampshire Supreme Court's former decision in Slayton v. Personnel Comm'n, 117 N.H. 206, 371 A.2d 1159 (1977). Petition of SEA of NH, Inc., Thomas J. Goulette, et al (New Hampshire Personnel Commission), 129 N.H. 536, 541-43, 529 A.2d 968 (1987). The New Hampshire Supreme Court ordered the State to award petitioners retroactive pay for their time worked in the classification from September 3, 1975, until June 15, 1979, and remanded to the personnel appeals board for further proceedings consistent with the opinion. Id. at 543, 529 A.2d 968.

Armed with the new state law and the New Hampshire Supreme Court's 1987 Goulette decision, plaintiffs submitted an amended complaint seeking damages and injunctive relief in this court for the defendants' alleged violation of the Fourteenth Amendment. Additionally, SEA requests the Court's certification to proceed as a federal class action suit.

Issues

In their motion to dismiss, defendants urge that the individual defendants are shielded from liability in their personal capacities under the doctrine of qualified immunity. Defendants also assert the defense of sovereign immunity on behalf of the State and on behalf of the individual defendants in their official capacities, claiming that the Eleventh Amendment to the United States Constitution bars a federal court from granting relief in a claim against the State. Lastly, defendants argue that there was no equal protection violation because the State had a rational basis for applying three separate pay schedules.

Qualified Immunity

"Qualified immunity is provided for government officials because `permitting damages suits against government officials can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.'" Knight v. Mills, 836 F.2d 659, 666 n. 9 (1st Cir.1987) (quoting Anderson v. Creighton, ___ U.S. ___, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987)). The qualified immunity defense is available to state executive and administrative officials whose official actions are challenged under section 1983. Id. at 665. To qualify for this affirmative defense, the state officials must perform discretionary functions, the challenged acts must fall within the scope of their authority, and the acts must be of the type typically performed in that official role. Id. at 665-666. Even if implementing the three pay scales fell within the individual defendants' typical duties, and even if each defendant had the ability to challenge the lawfulness of the tripartite salary schedule, defendants maintain that the pay system did not violate a clearly established statutory or constitutional right.

In order to overcome qualified immunity, the officials' acts must violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). From 1979 until 1986, New Hampshire statutory law allowed a three-scale pay schedule. See RSA 99:1-a (Supp. 1979) (codifying the three pay scales). Although this law was amended in 1986, see RSA 99:1-a (Supp.1986), the New Hampshire Supreme Court did not decide that the different pay scales were illegal until July 1987. See Petition of SEA, supra, 129 N.H. 543, 529 A.2d 968. It would be patently unreasonable to expect a state official to know that the three salary schedules violated the Fourteenth Amendment when those officials were acting in accordance with existing state law. See Davis v. Scherer, 468 U.S. 183, 195-96 & n. 13, 104 S.Ct. 3012, 3019-20 & n. 13, 82 L.Ed.2d 139 (1984). Because the individual defendants did not violate a clearly established constitutional right of which a reasonable person would have known, the Court finds the defendants not to be liable in their personal capacities.

The Eleventh Amendment

SEA contends that because the tripartite pay schedules allegedly violate the equal protection clause of the Fourteenth Amendment, the academic employees are entitled to damages and injunctive relief against the State of New Hampshire and the individual defendants in their official capacities. In their defense, defendants assert that the Eleventh Amendment bars this Court from granting relief.

Because the State of New Hampshire is the real party in interest, the Court will only entertain these charges as they pertain to the State. "An official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.... It is not a suit against the official personally, for the real party in interest is the entity." Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985); cf. Rule 17(a), Fed.R.Civ.P.

The Eleventh Amendment states:

The 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.

SEA argues that because this suit is not against the State of New Hampshire and the named officials by citizens of another state or citizens of a foreign state, the Eleventh Amendment by its own terms does not apply to this case. The Court disagrees. Notwithstanding the limited terms of the Eleventh Amendment, the sovereign immunity principle embraced therein prevents a federal district court from asserting jurisdiction over a private suit brought by a litigant against his or her own state without the state's consent. Pennhurst State School and Hosp. v. Halderman, 465 U.S. 89, 98, 104 S.Ct. 900, 906, 79 L.Ed.2d 67 (1984). Thus, the Eleventh Amendment provides defendants with a sovereign immunity defense.

In the alternative, plaintiffs argue that the State of New Hampshire has waived its sovereign immunity. The Supreme Court recognizes a state's right to waive its Eleventh Amendment sovereign immunity, provided that the state's consent to be sued in federal court is "unequivocally expressed." Welch v. State Dept. of Highways and Pub. Transp., ___ U.S. ___, ___, 107 S.Ct. 2941, 2947, 97 L.Ed.2d 389 (1987); Pennhurst, supra, 465 U.S. at 99, 104 S.Ct. at 907. The New Hampshire Supreme Court recognizes a waiver of sovereign immunity "if the legislature has provided for it by statute either expressly or by reasonable implication." SEA of NH v. Belknap County, 122 N.H. 614, 621, 448 A.2d 969 (1982).

SEA argues at great length that the State has repeatedly defended lawsuits against its employees in state court. Plaintiffs' Memorandum in Opposition to Defendants' Motion to Dismiss hereinafter "Plaintiffs' Memorandum" at 4. Yet, the long list of New Hampshire Supreme Court decisions cited by SEA establishes only that the State has consented to be sued in its own courts. "A state's waiver of the Eleventh Amendment immunity in its own courts is not a waiver of the Eleventh Amendment immunity in the federal courts." Pennhurst, supra, 465 U.S. at 99 n. 9, 104 S.Ct. at 907 n. 9; see also Metcalf & Eddy, Inc. v. Town of Gorham, N.H., 587 F.Supp. 32, 33-34 (D.N.H.1984) (even though RSA 491:8 allows suits against the state in state court, the New Hampshire Legislature has not expressly...