Timmer v. Michigan Dept. of Commerce

• Decision Date: 15 January 1997
• Docket Number: No. 95-1706,95-1706
• Citation: 104 F.3d 833
• Parties: 72 Fair Empl.Prac.Cas. (BNA) 1471, 69 Empl. Prac. Dec. P 44,543, 65 USLW 2483, 133 Lab.Cas. P 33,503 Carol A. TIMMER, Plaintiff-Appellant, v. MICHIGAN DEPARTMENT OF COMMERCE and Michigan Department of Civil Service, Defendants-Appellees, United States of America, Intervenor.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 833

104 F.3d 833

72 Fair Empl.Prac.Cas. (BNA) 1471,

69 Empl. Prac. Dec. P 44,543, 65 USLW 2483,

133 Lab.Cas. P 33,503

Carol A. TIMMER, Plaintiff-Appellant, v. MICHIGAN DEPARTMENT OF COMMERCE and Michigan Department of

Civil Service, Defendants-Appellees,

United States of America, Intervenor.

No. 95-1706.

United States Court of Appeals,

Sixth Circuit.

Argued Aug. 6, 1996.

Decided Jan. 15, 1997.

Brandon W. Zuk (argued and briefed), Fraser, Trebilcock, Davis & Foster, Lansing MI, for Plaintiff-Appellant.

Denise C. Barton, Asst. Attorney Gen. (argued and briefed), Gary P. Gordon, Asst. Attorney Gen., Office of the Attorney General of Michigan, Lansing, MI, for Defendants-Appellees.

Jessica D. Silver, Seth M. Galanter (argued and briefed), U.S. Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, for Intervenor.

Before: KENNEDY, BOGGS, and SILER, Circuit Judges.

KENNEDY, J., delivered the opinion of the court, in which SILER, J., joined. BOGGS, J. (pp. 845-847), delivered a separate opinion concurring in part and dissenting in part.

KENNEDY, Circuit Judge.

Plaintiff Carol A. Timmer appeals an order granting summary judgment to defendants ¹ in this action under the Equal Pay Act (Act), 29 U.S.C. § 206(d). After finding that plaintiff had established a prima facie case of wage discrimination, the District Court concluded that defendant was entitled to summary judgment on its affirmative defense of a differential based on a factor other than sex, here a mistake as to the male co-worker's proper classification. We first conclude that Seminole Tribe of Florida v. Florida, --- U.S. ----, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), does not deprive the federal court of jurisdiction to hear plaintiff's claim against the State. We then AFFIRM the District Court's grant of summary judgment.

I. Facts

Plaintiff is employed in the Insurance Bureau, a part of the Michigan Department of Commerce (Department), in the Commercial Market Standards Division. In 1989, she was classified and paid as a Departmental Specialist VII. In her position as an analyst in the area of Liquor Liability, Claims-Made, and Pollution Liability, plaintiff was responsible for reviewing and approving or disapproving all forms and rates which were submitted by insurance companies.

John Esser also worked as an analyst in the Insurance Bureau. In 1989, the Department recommended that Esser be reallocated to the Departmental Specialist VIII position because his job entailed reviewing life insurance and credit card rates. At the time the recommendation was made, the Department's benchmark committee believed that life insurance policies were more complex than other forms of insurance because they also served as investment products. On or about April 30, 1989, Esser was reclassified as a Departmental Specialist VIII.

In October 1990, plaintiff sought a reclassification of her position from level VII to level VIII. The Department's benchmark committee reviewed the factors assigned to plaintiff's and Esser's positions and concluded that "all the program specialist positions in the division would most appropriately be classified at the VII level and that the committee had erred in factoring the Esser position" (JA at 134). Thus, while plaintiff's position was properly factored at level VII, Esser's factoring in 1989 had been "overly optimistic" (JA at 142). The committee issued a revised benchmark factor rating sheet for Esser and notified the Department of Civil Service (Civil Service).

After reviewing the committee's conclusions and performing a "desk audit," the Civil Service found that Esser's position was over-allocated one level. It recommended to the Department that it "restrict" Esser's position in accordance with the Civil Service's policy regarding the remedy to employ when an individual's position is over-allocated or no longer appropriate. Under the restriction policy, the Department would continue to pay Esser at his current salary level and would grant pay increases, but the next person who moved into his job would be classified as and receive pay in accordance with level VII. ²

Plaintiff failed to have her position reclassified through administrative appeals. She then pursued this challenge in federal court under the Equal Pay Act, 29 U.S.C. § 206(d), seeking money damages. The parties filed cross-motions for summary judgment.

On May 19, 1995, the District Court granted defendant's motion for summary judgment. The District Court first found that plaintiff had established a prima facie case under the Equal Pay Act by showing that she was performing work equal to that of Esser, but that she was being paid a lower wage. However, the court found that defendant had met its burden of proving that a factor other than sex was the basis for the wage differential, thereby rebutting plaintiff's prima facie case. Because plaintiff had not shown that defendant's explanation was pretextual or that the pay differential was based on sex, the District Court concluded that as a matter of law defendant had not violated the Act. Plaintiff appeals this grant of summary judgment.

On May 22, 1996, this court asked the parties to file supplemental briefs addressing the issue of subject matter jurisdiction in view of the Supreme Court's decision in Seminole Tribe of Florida v. Florida, --- U.S. ----, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), because the Equal Pay Act was expressly passed pursuant to the Interstate Commerce Clause, U.S. CONST., Art. I, § 8, cl. 3. Additionally, in accordance with FED. R.APP. P. 44, the Attorney General of the United States was notified that the constitutionality of the Equal Pay Act had been drawn into question. The United States intervened as of right under 28 U.S.C. § 2403(a) to defend the constitutionality of the Act.

II. Discussion

A. Subject Matter Jurisdiction

1. Standard of Review

The District Court did not address the question of subject matter jurisdiction. The State of Michigan asserts an Eleventh Amendment defense in its supplemental brief. An Eleventh Amendment argument may be raised by a State for the first time on appeal. Edelman v. Jordan, 415 U.S. 651, 677-78, 94 S.Ct. 1347, 1362-63, 39 L.Ed.2d 662 (1974). Because the question of whether the Eleventh Amendment applies is a question of law, we determine the issue de novo. Williams v. Kentucky, 24 F.3d 1526, 1543 (6th Cir.), cert. denied, 513 U.S. 947, 115 S.Ct. 358, 130 L.Ed.2d 312 (1994).

2. Background

The Eleventh Amendment bars suits by all persons against a State in federal court. ³ See Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304, 110 S.Ct. 1868, 1872, 109 L.Ed.2d 264 (1990). However, the bar to suit is not absolute: States may consent to be sued in federal court or Congress may abrogate their sovereign immunity. Id. In this case, the State of Michigan has not consented to suit.

In Seminole Tribe, the Supreme Court considered whether Congress had properly abrogated the States' Eleventh Amendment immunity in passing the Indian Gaming Regulatory Act (IGRA) under the Indian Commerce Clause, U.S. CONST., Art. I, § 8, cl. 3. The Court held that although Congress had provided an "unmistakably clear" statement of its intent to abrogate, --- U.S. at ---- - ----, 116 S.Ct. at 1123-24, it had no power to do so under the Indian Commerce Clause, id. at ---- - ----, 116 S.Ct. at 1131-32, which the Court found to be indistinguishable, for purposes of Eleventh Amendment analysis, from the Interstate Commerce Clause, see id. at ----, 116 S.Ct. at 1127.

The Equal Pay Act of 1963, Pub.L. No. 88-38, 77 Stat. 56 (codified at 29 U.S.C. § 206(d)), was enacted by Congress as an amendment to the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219. It was based on a congressional finding that sex-based wage differentials have a substantial adverse impact on interstate commerce, and it accordingly required that all persons performing equal work must receive equal pay, unless the differential is justified by a consideration other than sex. ⁴ As with many civil rights statutes, the Equal Pay Act initially applied only to private employers, see Marshall v. Owensboro-Daviess County Hosp., 581 F.2d 116, 117 (6th Cir.1978). In 1974, however, Congress extended the Act to the States. See Fair Labor Standards Amendments of 1974, Pub.L. No. 93-259, § 6, 88 Stat. 55, 58-62. Because Congress stated in the original version of the Equal Pay Act that it was legislating pursuant to its powers under the Interstate Commerce Clause, ⁵ Seminole Tribe raises questions about the Act's constitutionality as applied to state employers.

3. Eleventh Amendment Analysis

In order to determine whether Congress has properly abrogated the States' sovereign immunity in the Equal Pay Act, we must apply the two-part test articulated in Seminole Tribe: "[F]irst, whether Congress has 'unequivocally expresse[d] its intent to abrogate the immunity' ... and second, whether Congress has acted 'pursuant to a valid exercise of power.' " --- U.S. at ----, 116 S.Ct. at 1123 (citation omitted) (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 425-26, 88 L.Ed.2d 371 (1985)). We consider each of these questions in turn.

a. Intent to Abrogate

We agree with the parties, and with the other courts of appeals which have expressly addressed this issue, that the definitional and enforcement provisions applicable to the Act contain the necessary clear statement of Congress' intent to abrogate state sovereign immunity. Brinkman v. Department of Corrections, 21 F.3d 370, 372 (10th Cir.), cert. denied, 513 U.S. 927, 115 S.Ct. 315, 130 L.Ed.2d 277 (1994); Reich v. New York, 3 F.3d 581, 590-91 (2d Cir.1993), cert. denied, 510 U.S. 1163, 114 S.Ct. 1187, 127 L.Ed.2d 537 (1994); Hale v. Arizona, 993 F.2d 1387, 1391-92 (9th Cir.) (en banc), cert. denied, 510 U.S. 946, 114 S.Ct. 386, 126 L.Ed.2d 335 (1993). ⁶ The term "employer" is defined in the FLSA to "include[ ] a public agency,"...