Ussery v. State of La. on Behalf of Louisiana Dept. of Health and Hospitals

Citation150 F.3d 431
Decision Date05 August 1998
Docket NumberNo. 97-30545,97-30545
Parties77 Fair Empl.Prac.Cas. (BNA) 1198 Karen M. USSERY, Plaintiff-Appellee, v. STATE OF LOUISIANA, on Behalf of LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS; Pinecrest Developmental Center; Rodney Richmond, Defendants, State of Louisiana, on behalf of Louisiana Department of Health and Hospitals, Defendant--Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

David Edward Stanley, Baton Rouge, LA, for Plaintiff-Appellee.

Seth Michael Galanter, Jessica Dunsay Silver, U.S.Dept. of Justice, Appellate Section, Civil Rights Division, Washington, DC, for Intervenor.

David Glen Sanders, Asst. Atty. General, Baton Rouge, LA, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Louisiana.

Before DUHE, BENAVIDES and STEWART, Circuit Judges.

BENAVIDES, Circuit Judge:

The appellant, the State of Louisiana, brings this interlocutory appeal challenging the district court's denial of its motion for summary judgment, in which the State argued that the plaintiff's claims against it under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, and the Equal Pay Act of 1963 ("EPA"), as amended, 29 U.S.C. § 206(d), were barred by the Eleventh Amendment. For the reasons set forth below, we AFFIRM.

Background

On November 17, 1995, Karen M. Ussery, a state employee at the Pinecrest Developmental Center in Pineville, Louisiana, filed suit against the State of Louisiana through the Department of Health and Hospitals, Pinecrest Developmental Center, and Rodney Richmond, alleging claims under Title VII, the EPA, and state law. Ms. Ussery alleged that she was retaliated against for filing a prior EEOC complaint, that two employment practices related to the attainment of her master's degree violated the EPA, that the defendants violated La. R.S. 23:1006 and La. R.S. 51:2231, and that Rodney Richmond intentionally inflicted emotional distress on her.

On March 13, 1997, the State of Louisiana moved for summary judgment, arguing that plaintiff's claims against it were barred by the Eleventh Amendment and that the claims failed as a matter of law. On April 25, 1997, the district court denied the State's motion for summary judgment on the basis of Eleventh Amendment immunity as to the plaintiff's Title VII and EPA claims, denied the State's motion for summary judgment on the merits as to the plaintiff's Title VII and EPA claims, granted the State summary judgment as to plaintiff's state law claims, and granted defendant Richmond summary judgment as to plaintiff's state law claims against him. On May 23, 1997, the State filed a timely notice of appeal. This court has jurisdiction under the collateral order doctrine over only the State's argument that the plaintiff's claims under Title VII and the EPA are barred by the Eleventh Amendment. See Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 146-47, 113 S.Ct. 684, 689, 121 L.Ed.2d 605 (1993). 1

Standard of Review

Whether a state is entitled to Eleventh Amendment immunity is a question of law which this court reviews de novo. See Stine v. Marathon Oil Co., 976 F.2d 254, 259 (5th Cir.1992).

Discussion

In general, the Eleventh Amendment bars all persons from suing a State for money damages in federal court. See U.S. Const. amend. XI; Seminole Tribe v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 1122, 134 L.Ed.2d 252 (1996). Of course, this bar is not absolute: a State may consent to suit or Congress may abrogate the States' Eleventh Amendment immunity. See Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304, 110 S.Ct. 1868, 1872, 109 L.Ed.2d 264 (1990). In this case, it is clear that the State of Louisiana has not consented to be sued in federal court. See La. R.S. 13:5106; Delahoussaye v. City of New Iberia, 937 F.2d 144, 147 (5th Cir.1991). Thus, the sole question before the court is whether Congress abrogated the States' Eleventh Amendment immunity when it amended Title VII and the EPA.

In Seminole Tribe, the Supreme Court set forth a two-part test for determining whether Congress has properly abrogated the States' Eleventh Amendment immunity. First, the court must determine whether Congress "unequivocally expresse[d] its intent to abrogate the immunity." 517 U.S. at 55, 116 S.Ct. at 1123 (quotation omitted). This intent to abrogate must be expressed "in unmistakable language in the statute itself." Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 243, 105 S.Ct. 3142, 3148, 87 L.Ed.2d 171 (1985). Second, the court must determine whether Congress acted "pursuant to a valid exercise of power." Seminole Tribe, 517 U.S. at 55, 116 S.Ct. at 1123 (quotation omitted). In Seminole Tribe, the Court reaffirmed its previous holding that Congress can abrogate the States' Eleventh Amendment immunity when it enacts legislation pursuant to § 5 of the Fourteenth Amendment. See id. at 59, 116 S.Ct. at 1125.

A. Title VII

The State first argues that Congress has not sufficiently stated its intent to abrogate the States' Eleventh Amendment immunity with respect to Title VII. In Fitzpatrick v. Bitzer, however, the Supreme Court specifically held that "in the 1972 Amendments to Title VII of the Civil Rights Act of 1964, Congress, acting under Section 5 of the Fourteenth Amendment, authorized federal courts to award money damages in favor of a private individual against a state government found to have subjected that person to employment discrimination on the basis of race, color, religion, sex, or national origin." 427 U.S. 445, 447 96 S.Ct. 2666, 2667-68 (1976). Since Fitzpatrick, this court has repeatedly held that Title VII clearly abrogated the States' Eleventh Amendment immunity. E.g., Pegues v. Mississippi State Employment Serv., 899 F.2d 1449, 1453 (5th Cir.1990); Whiting v. Jackson State Univ., 616 F.2d 116, 127 n. 8 (5th Cir.1980).

Nonetheless, the State argues that, despite the clear language in Fitzpatrick and this court's subsequent cases, none of these cases has really addressed whether Title VII contains the unmistakable congressional waiver of the States' Eleventh Amendment immunity required by the Supreme Court in Atascadero, which was decided some nine (9) years after Fitzpatrick. According to the State, under Atascadero, in order for Congress to validly abrogate the States' Eleventh Amendment immunity, it must make an express statement of such an intent in the text of the statute using the words "States," "Eleventh Amendment immunity," or "sovereign immunity." The courts, however, have never required that Congress express this intent using the magic language suggested by the State. Instead, Atascadero requires only that Congress express its intent to abrogate the States' Eleventh Amendment immunity "in unmistakable language in the statute itself." 473 U.S. at 243, 105 S.Ct. at 3148. As the Court recognized in Fitzpatrick, Congress made its intent to abrogate the States' Eleventh Amendment immunity unmistakably clear when it amended Title VII's definition of "person" to include governments, governmental agencies, and political subdivisions, 42 U.S.C. § 2000e(a), and simultaneously amended the definition of employee to include individuals "subject to the civil service laws of a State government, government agency, or political subdivision," 42 U.S.C. § 2000e(f). See Fitzpatrick, 427 U.S. at 449 n. 2, 96 S.Ct. at 2668 n. 2. Accordingly, the State's argument to the contrary is unavailing.

B. Equal Pay Act

The Equal Pay Act of 1963, as amended, 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. In short, the EPA requires that all persons performing equal work must receive equal pay, unless a difference in pay is justified by a consideration other than gender. "As with many civil rights statutes, the Equal Pay Act initially applied only to private employers. In 1974, however, Congress extended the Act to include the States [as employers]." Timmer v. Michigan Dep't of Commerce, 104 F.3d 833, 837 (6th Cir.1997) (citations omitted).

1. Intent to Abrogate

On appeal, the State wisely does not contest the district court's conclusion that Congress expressed its intent to abrogate the States' Eleventh Amendment immunity in "unmistakable language" in the EPA itself. The private enforcement provision of the FLSA, of which the EPA is a part, provides that "[a]n action to recover the liability prescribed ... may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b). The term "employer" is defined in the FLSA to include "a public agency," 29 U.S.C. § 203(d), which is in turn defined as "the government of a State or political subdivision thereof" and any agency of a State, 29 U.S.C. § 203(x). Finally, the term "employee" is defined to include "any individual employed by a State, political subdivision of a State, or an interstate governmental agency." 29 U.S.C. § 203(e)(2)(C).

Given the plain language of the statute, the five courts of appeals that have addressed the issue have held that the definitional and enforcement provisions in the EPA contain the necessary "clear statement" of Congress's intent to abrogate the States' Eleventh Amendment immunity. See Timmer, 104 F.3d at 837-38 (6th Cir.1997); see also Mills v. Maine, 118 F.3d 37, 42 (1st Cir.1997) (involving an Eleventh Amendment challenge to the overtime and minimum wage provisions of the FLSA); Brinkman v. Department of Corrections, 21 F.3d 370, 372 (10th Cir.1994) (same); Reich v. New York, 3 F.3d 581, 590-91 (2d Cir.1993) (same); Hale v. Arizona, 993 F.2d 1387, 1391-92 (9th Cir.1993) (en banc) (same). We now join our sister circuits in reaching the same conclusion.

2. Power to Abrogate

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