Teichgraeber v. Memorial Union Corp. of Emporia

• Decision Date: 26 November 1996
• Docket Number: No. 95-4118-SAC.,95-4118-SAC.
• Citation: 946 F.Supp. 900
• Parties: Jeniene TEICHGRAEBER, Plaintiff, v. MEMORIAL UNION CORPORATION OF THE EMPORIA STATE UNIVERSITY, Defendant.
• Court: U.S. District Court — District of Kansas

946 F.Supp. 900

Jeniene TEICHGRAEBER, Plaintiff, v. MEMORIAL UNION CORPORATION OF THE EMPORIA STATE UNIVERSITY, Defendant.

No. 95-4118-SAC.

United States District Court, D. Kansas.

November 26, 1996.

Harold S. Youngentob, Goodell, Stratton, Edmonds & Palmer, Topeka, KS, for Jeniene Teichgraeber.

Kevin D. Case, Office of the Attorney General, Topeka, KS, for Memorial Union Corporation.

MEMORANDUM AND ORDER

CROW, District Judge.

The case comes before the court on the defendant's motion to dismiss pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. (Dk. 51). This is an employment discharge case in which the plaintiff claims she was fired in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq., the Kansas Age Discrimination in Employment Act, K.S.A. 44-1111, et seq., and in breach of an implied employment contract. In its motion, the defendant argues it is an arm of the state entitled to Eleventh Amendment immunity from suit in federal court. The plaintiff first disputes that the defendant is an arm of the state and then argues that the Tenth Circuit rejected the defendant's same immunity argument in Hurd v. Pittsburgh State University, 29 F.3d 564, 565 (10th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 321, 130 L.Ed.2d 282 (1994).

STANDARDS GOVERNING MOTION

When a defendant brings a motion to dismiss for lack of subject matter jurisdiction, the plaintiff carries the burden of proving jurisdiction. Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.1991), cert. denied, 503 U.S. 984, 112 S.Ct. 1667, 118 L.Ed.2d 388 (1992); Moir v. Greater Cleveland Regional Transit Authority, 895 F.2d 266, 269 (6th Cir.1990). In deciding such a motion, the court may consider evidence outside the pleadings without converting the proceeding to one for summary judgment. Cizek v. United States, 953 F.2d 1232, 1233 (10th Cir.1992); Mounkes v. Conklin, 922 F.Supp. 1501, 1505-06 (D.Kan.1996). The court may consider evidence outside the pleadings without converting the proceeding to one for summary judgment. Cizek v. United States, 953 F.2d 1232, 1233 (10th Cir.1992); Jensen v. Johnson County Youth Baseball League, 838 F.Supp. 1437, 1440 (D.Kan.1993). The motion here goes beyond the allegations on the face of the plaintiff's complaint and makes a factual attack on the existence of subject matter jurisdiction based on the undisputed facts of record. See United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 188, 130 L.Ed.2d 121 (1994); Voisin's Oyster House, Inc. v. Guidry, 799 F.2d 183, 188 n. 5 (5th Cir.1986). On such a motion, the court does not accord any presumptive truthfulness to the factual allegations in the complaint, and it may weigh the evidence and resolve factual disputes, if necessary, in deciding whether the facts sustain subject matter jurisdiction. United States v. Ritchie, 15 F.3d at 598; see Moir, 895 F.2d at 269; Wheeler v. Hurdman, 825 F.2d 257, 259 n. 5 (10th Cir.), cert. denied, 484 U.S. 986, 108 S.Ct. 503, 98 L.Ed.2d 501 (1987).

RELEVANT FACTS

The plaintiff Jeniene Teichgraeber ("Teichgraeber") worked for the defendant Memorial Union Corporation of the Emporia State University ("Memorial Union") from September 1, 1977, until her termination on September 30, 1994. At the time of her termination, Teichgraeber had been employed as administrative assistant to the Memorial Union. In 1994, the Memorial Union reorganized resulting in its employees becoming employees of the state of Kansas and in the elimination of the administrative assistant position then held by Teichgraeber.

Memorial Union is a nonprofit corporation organized under the laws of the state of Kansas and authorized to operate the student union at Emporia State University. The Memorial Union's human resources and payroll needs are handled for the most part by Emporia State University's Human Resources/Payroll Department. The annual report for the Memorial Union shows it having assets of $772,457 and liabilities of $312,982. The Memorial Union does not carry insurance covering claims like the plaintiff's. With the exception of its officers and directors, the Memorial Union no longer has employees, as all positions are now held by employees of Emporia State University.

ELEVENTH AMENDMENT BASICS

The Eleventh Amendment to the United States Constitution provides:

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.

U.S. CONST. amend. XI. As construed by the Supreme Court, this amendment embodies more than what its literal text conveys. Though the exact words of the Eleventh Amendment seem to preclude only diversity jurisdiction, the Supreme Court in Hans v. Louisiana, 134 U.S. 1, 10, 10 S.Ct. 504, 505, 33 L.Ed. 842 (1890), held that the Eleventh Amendment even precludes citizens from bringing suits in federal court against their own states. The reasoning, then and now, rests mostly on an unstated premise:

Despite the narrowness of its terms, since Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty.... (citations omitted).

Blatchford v. Native Village of Noatak, 501 U.S. 775, 779, 111 S.Ct. 2578, 2581, 115 L.Ed.2d 686 (1991); see Welch v. Texas Dept. of Highways & Public Transp., 483 U.S. 468, 472, 107 S.Ct. 2941, 2945, 97 L.Ed.2d 389 (1987) (plurality opinion). Consequently, "[t]he Eleventh Amendment largely shields States from suit in federal court without their consent, leaving parties with claims against a State to present them, if the State permits, in the State's own tribunals." Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, ___, 115 S.Ct. 394, 400, 130 L.Ed.2d 245, 255 (1994). In other words, the Eleventh Amendment affirms "`that the fundamental principle of sovereign immunity limits the grant of judicial authority under Art. III' of the Constitution." Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 3145, 87 L.Ed.2d 171 (1985) (quoting Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98, 104 S.Ct. 900, 906, 79 L.Ed.2d 67 (1984)).

Though often couched in terms of sovereign immunity, the Eleventh Amendment functions somewhat like a jurisdictional bar. See Welch, 483 U.S. at 476 n. 6, 107 S.Ct. at 2947 n. 6 (the "Eleventh Amendment immunity `partakes of the nature of a jurisdictional bar,'" (quoting Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 1363, 39 L.Ed.2d 662 (1974)). Unlike most jurisdictional bars, Eleventh Amendment immunity can be waived or forfeited. Christy v. Pennsylvania Turnpike Commission, 54 F.3d 1140, 1144 (3rd Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 340, 133 L.Ed.2d 238 (1995). This court agrees with three recent circuit court decisions that "`whatever its jurisdictional attributes, [Eleventh Amendment immunity] should be treated as an affirmative defense,' and `[l]ike any other such defense, that which is promised by the Eleventh Amendment must be proved by the party that asserts it and would benefit from its acceptance.'" Christy, 54 F.3d at 1144 (quoting ITSI TV Productions Inc. v. Agricultural Associations, 3 F.3d 1289, 1291 (9th Cir.1993)); see also Baxter by Baxter v. Vigo County School Corp., 26 F.3d 728, 734 n. 5 (7th Cir.1994); cf. Mancuso v. New York State Thruway Authority, 86 F.3d 289, 292 (2nd Cir.1996) (defendant must "demonstrate that it is more like `an arm of the State.'"), cert. denied, ___ U.S. ___, 117 S.Ct. 481, 136 L.Ed.2d 375 (1996). Serious factual disputes over Eleventh Amendment immunity occur "only where a relatively complex institutional arrangement makes it unclear whether a given entity ought to be treated as an arm of the state." ITSI TV, 3 F.3d at 1292. Giving the burden to the party asserting immunity seems appropriate and fair in this situation, since "the `true facts' as to the particulars of this arrangement will presumably `lie peculiarly within the knowledge of' the party claiming immunity." Id.

"ARM OF THE STATE"

The Eleventh Amendment immunity protects only the states themselves and those state entities considered to be "arms of the state." Ambus v. Granite Bd. of Educ., 995 F.2d 992, 994 (10th Cir.1993). Its protection does not extend to counties, municipal corporations or other political subdivisions. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977). Arms of the state are considered to be those "entities created by state governments that operate as alter egos or instrumentalities of the states." Watson v. University of Utah Medical Center, 75 F.3d 569, 575 (10th Cir.1996). "Under the arm-of-the-state doctrine, courts classify state governmental bodies according to a dichotomy, in which arms of the state enjoy Eleventh Amendment immunity, whereas political subdivisions such as counties and cities do not." Mascheroni v. Board of Regents of University of California, 28 F.3d 1554, 1559 (10th Cir.1994).

The Tenth Circuit has said that whether an entity qualifies as an "arm of the state" is an issue analyzed in these terms:

In evaluating an assertion of immunity by an entity such as the Wyoming Farm Loan Board, the court first examines the degree of autonomy given to the agency, as determined by the characterization of the agency by state law and the extent of guidance and control exercised by the state. Second, the court examines the extent of financing the agency receives independent of the state...