Stefanovic v. University of Tennessee

• Decision Date: 08 April 1996
• Docket Number: No. 3:95-cv-231.,3:95-cv-231.
• Citation: 935 F. Supp. 944
• Parties: Dragan STEFANOVIC, Plaintiff, v. UNIVERSITY OF TENNESSEE, University of Tennessee Board of Trustees, University of Tennessee Center for International Education, University of Tennessee Affirmative Action Office, William T. Snyder, Philip A. Schuerer, James N. Gehlhar, Joseph W. Flory, Lola R. Dodge, and Camille Hazeur, Defendants.
• Court: U.S. District Court — Eastern District of Tennessee

935 F. Supp. 944

Dragan STEFANOVIC, Plaintiff, v. UNIVERSITY OF TENNESSEE, University of Tennessee Board of Trustees, University of Tennessee Center for International Education, University of Tennessee Affirmative Action Office, William T. Snyder, Philip A. Schuerer, James N. Gehlhar, Joseph W. Flory, Lola R. Dodge, and Camille Hazeur, Defendants.

No. 3:95-cv-231.

United States District Court, E.D. Tennessee.

April 8, 1996.

David R. Duggan, Maryville, TN, for Plaintiff.

Catherine S. Mizelle, Ronald C. Leadbetter, Office of General Counsel, University of Tennessee, Knoxville, TN, for Defendants.

MEMORANDUM OPINION

JARVIS, Chief Judge.

In his original complaint for employment discrimination, plaintiff alleges violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq., ("Title VII"), the Vietnam Era Veterans Readjustment Assistance Act ("VEVRA"),¹ Executive Order 11246, the Fourteenth Amendment to the United States Constitution, and the Tennessee Human Rights Act, Tennessee Code Annotated §§ 4-21-101, et seq., ("THRA"). In his amended complaint Doc. 20, plaintiff has added a Bivens cause of action² against all defendants. Defendants are the University of Tennessee ("UT"), the Trustees of UT, parts of UT, and UT officials who have been sued both in their official and individual capacities.

This matter is presently before the court on defendants' motion to dismiss Doc. 12 in which defendants seek the dismissal of all claims except the Title VII claims for back pay and compensatory damages against UT. The issues raised have been thoroughly briefed by the parties see Docs. 13 and 18. For the reasons that follow, defendants' motion will be granted in part and denied in part.

Plaintiff's Allegations

Defendants' motion to dismiss is based both on lack of subject matter jurisdiction pursuant to Rule 12(b)(1), Federal Rules of Civil Procedure, and on failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure. With respect to a facial attack on the subject matter jurisdiction alleged by the complaint and with respect to a motion pursuant to Rule 12(b)(6), the court takes the allegations in the complaint as true. See Ohio National Life Insurance Company v. United States, 922 F.2d 320, 325 (6th Cir. 1990).³

On July 2, 1993, plaintiff applied for the position of Coordinator of International Programming for the UT Center for International Education see Doc. 20, ¶ 20a. On July 26, 1993, plaintiff learned that he had not been selected as a finalist to be interviewed for that position see id., ¶ 201. Sometime prior to December 16, 1993, plaintiff became aware of the identity of the person whom UT had hired see id., ¶¶ 20m and 35. Therefore, on December 16, 1993, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") naming only the University of Tennessee Center for International Education as a respondent see Doc. 1, attachment. Plaintiff then filed this action on May 1, 1995, claiming that UT denied him employment because of his sex (male), his national origin (Eastern European), and his status as a military veteran see Doc. 20, ¶ 32. Plaintiff seeks back pay, compensatory and punitive damages, attorney fees, and costs against UT and its officials in both their official and individual capacities.

Eleventh Amendment Immunity

The defendants first contend that the Eleventh Amendment is an absolute bar to all claims against UT, its various parts, its trustees, and its officials in their official capacities, with one exception — plaintiff's Title VII claims.⁴ The Eleventh Amendment provides:

The judicial power of the United States shall not be construed to extend to any suit in law or equity ... against one state by citizens of another state, or by citizens or subjects of any foreign state.

Thus, in the absence of express state consent or express congressional abrogation by a federal statute like Title VII, the Eleventh Amendment bars an action in federal court against a state and state officials in their official capacities. See Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 1355-56, 39 L.Ed.2d 662 (1974). This Eleventh Amendment immunity has also been extended to state law claims brought into federal court under pendent (now supplemental) jurisdiction.⁵ Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 121, 104 S.Ct. 900, 919, 79 L.Ed.2d 67 (1984).

The undersigned has repeatedly held that UT is an arm and alter ego of the State of Tennessee and is therefore entitled to the State's Eleventh Amendment immunity from suit. Carlson v. Highter, 612 F.Supp. 603 (E.D.Tenn.1985); cf. University of Tennessee v. U.S. Fidelity & Guaranty Company, 670 F.Supp. 1379 (E.D.Tenn.1987) (UT was arm or alter ego of State, and thus was not citizen for federal diversity purposes.). Other judges in this district have ruled likewise. See Kersavage v. UT, 731 F.Supp. 1327 (E.D.Tenn.1989) (Judge Jordan); Fireman's Fund Insurance Company v. Bell Helicopter Textron, Inc., 667 F.Supp. 583 (E.D.Tenn. 1987) (Judge Hull). Furthermore, it is well established that a cause of action against an individual in his official capacity represents an action against the entity of which that officer is an agent; thus, plaintiff's causes of action against these UT officials in their official capacities assert impermissible actions against the State. See, e.g., Florida Dept. of Health and Rehabilitative Services v. Florida Nursing Home Association, 450 U.S. 147, 101 S.Ct. 1032, 67 L.Ed.2d 132, reh'g denied, 451 U.S. 933, 101 S.Ct. 2008, 68 L.Ed.2d 319 (1981). With respect to UT's Eleventh Amendment immunity (which is also extended to UT's officials acting in their official capacities), plaintiff raises several arguments regarding his cause of action under the Fourteenth Amendment, the VEVRA, Executive Order 11246, and the THRA. In the court's opinion, these arguments are without merit.

First, with respect to his cause of action pursuant to the Fourteenth Amendment, plaintiff does not directly address defendants' argument that this action is barred by the Eleventh Amendment. Rather, plaintiff reminds the court "that the individual Defendants have also been sued in their individual capacities, and of course there is no bar in the Eleventh Amendment to suits against these individual Defendants in their individual capacities." See Doc. 18, p. 2. And, of course, plaintiff really cannot address directly defendants' argument on this issue because there is no authority to support any such position. Thus, plaintiff's cause of action under the Fourteenth Amendment will be dismissed, based on Eleventh Amendment immunity, against all defendants except for the individual defendants sued in their individual capacities.

Second, with respect to his causes of action pursuant to VEVRA and Executive Order 11246, plaintiff contends that UT and the individual defendants acting in their official capacities "have waived their claimed immunity under the Eleventh Amendment ... by adoption of the University's affirmative action policy ..." see id.. However, plaintiff points to no specific language in UT's Affirmative Action Plan (the "Plan") which would constitute a waiver of the Eleventh Amendment immunity by either UT or its officials acting in their official capacities. In fact, the court has perused this Plan see Doc. 18, Ex. A and can find no language which would even arguably constitute an Eleventh Amendment waiver. Thus, the court finds that plaintiff's action under the VEVRA and Executive Order 11246 must be dismissed against all defendants for this reason alone.⁶

Third, with respect to his cause of action under THRA, plaintiff urges that this court not follow Boyd v. Tennessee State University, 848 F.Supp. 111, 114 (M.D.Tenn. 1994), in which Judge Wiseman held that, "there is no express consent by Tennessee, neither within the THRA nor elsewhere, to a suit in federal court for claims under the THRA." Although the Sixth Circuit has not yet ruled on this precise issue, this court, nevertheless, agrees completely with Judge Wiseman's analysis of this issue. Therefore, plaintiff's claims under the THRA will be dismissed against all defendants.

Accordingly, except for the Title VII claims, and plaintiff's claims against the individual defendants in their individual capacities under the Fourteenth Amendment, the Eleventh Amendment is an absolute bar to all of plaintiff's remaining claims against UT, its various parts, its trustees, and its officials in their official capacities.

No Private Right of Action Under the Fourteenth Amendment, the VEVRA, or Executive Order 11246

Defendants next contend that plaintiff has no right of action directly under the Fourteenth Amendment against any of these defendants. However, in view of the fact that this court has already granted plaintiff permission to amend his complaint to state a Bivens cause of action against the individual defendants acting in their individual capacities see Doc. 14, p. 3 (marginal entry), the court must deny this prong of defendants' motion at this time. On the other hand, the court agrees completely with the defendants that plaintiff has no private cause of action under either the VEVRA or Executive Order 11246.

As previously noted, plaintiff brings a cause of action against all of the defendants under the VEVRA. Although plaintiff asserts a general claim under "38 U.S.C. Sections 101, et seq.," see Doc. 20, p. 1, the only arguable statutory basis for his claim of employment discrimination is 38 U.S.C. § 4212. This statute requires federal contractors to take affirmative action to employ disabled veterans and veterans of the Vietnam era.⁷ The Sixth Circuit has, however, clearly held that the VEVRA does not create a private right of action for veterans alleging employment discrimination. Harris v. Adams, 873 F.2d 929, 932 (6th Cir.1989). Moreover,...