Varner v. Illinois State University

• Decision Date: 13 October 1998
• Docket Number: No. 97-3253,97-3253
• Citation: 150 F.3d 706
• Parties: 78 Fair Empl.Prac.Cas. (BNA) 1613, 74 Empl. Prac. Dec. P 45,498, 135 Lab.Cas. P 33,700, 128 Ed. Law Rep. 96 Iris I. VARNER, et al., Plaintiffs-Appellees, and United States of America, Intervenor-Appellee, v. ILLINOIS STATE UNIVERSITY, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 706

150 F.3d 706

78 Fair Empl.Prac.Cas. (BNA) 1613,

74 Empl. Prac. Dec. P 45,498,

135 Lab.Cas. P 33,700, 128 Ed. Law Rep. 96

Iris I. VARNER, et al., Plaintiffs-Appellees and United States of America, Intervenor-Appellee, v. ILLINOIS STATE UNIVERSITY, et al., Defendants-Appellants.

No. 97-3253.

United States Court of Appeals Seventh Circuit.

Argued Feb. 26, 1998.

Decided July 21, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied Oct. 13, 1998.

Martha A. Mills (argued), Joel J. Bellows, Bellows & Bellows, Chicago, IL, William R. Kohlhase, Miller, Hall & Triggs, Peoria, IL, for Plaintiffs-Appellees.

Arthur B. Cornell, Jr., Griffin, Winning, Cohen & Bodewes, Springfield, IL, Mark S. Mester (argued), Latham & Watkins, Chicago, IL, for Defendants-Appellants.

Jessica Dunsay Silver, Seth M. Galanter (argued), Department of Justice, Civil Rights Div., Appellate Section, Washington, DC, Isabelle K. Pinzler, Office of Atty. Gen., Champaign, IL, for Intervenor.

Before BAUER, WOOD, JR., and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

This appeal concerns the confluence of two recent, significant Supreme Court decisions, City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), and Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). The plaintiffs represent a class comprised of all tenured or tenure-track female faculty at Illinois State University ("ISU") from the 1982-83 academic year to the present. In 1995, they filed a complaint against ISU, four of its officials, its Board of Regents, and ten members of the Board (collectively, "the University"). The plaintiffs alleged violations of the Equal Pay Act, 29 U.S.C. § 206(d), and Title VII, 42 U.S.C. § 2000e, and sought injunctive and monetary relief, including compensatory damages for intentional violations of Title VII under 42 U.S.C. § 1981a. The University, which is concededly a state entity, moved to dismiss the Equal Pay Act claim, as well as that part of the Title VII claim seeking compensatory damages. The University argued that its Eleventh Amendment immunity served as a bar to federal jurisdiction with respect to these claims. The district court denied the University's motion to dismiss. See 972 F.Supp. 458 (C.D.Ill.1997), and 986 F.Supp. 1107 (C.D.Ill.1996).

The University appealed the district court's denial of its Eleventh Amendment immunity defense. We granted the United States' motion to intervene to defend the constitutionality of this application of federal law to the States. We have jurisdiction over this interlocutory appeal pursuant to 28 U.S.C. § 1291 under the collateral order doctrine. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 145, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993). We affirm the district court's decision in all respects.

I.

The Eleventh Amendment 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. While the amendment by its terms appears to limit only the federal courts' Article III diversity jurisdiction, the Supreme Court has long "understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition ... which it confirms." Blatchford v. Native Village of Noatak, 501 U.S. 775, 779, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991). The text of the amendment, narrowly written to overrule the Supreme Court's decision in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 1 L.Ed. 440 (1793), see Seminole Tribe, 517 U.S. at 67-70, 116 S.Ct. 1114, stands for the larger proposition, inherent in our federal system, that each state remains a sovereign entity. See id. at 54, 116 S.Ct. 1114 ("For over a century we have reaffirmed that federal jurisdiction over suits against unconsenting States 'was not contemplated by the Constitution when establishing the judicial power of the United States.' ") (quoting Hans v. Louisiana, 134 U.S. 1, 15, 10 S.Ct. 504, 33 L.Ed. 842 (1890)). Accordingly, the States enjoy an immunity from suit in federal court by all private parties for all causes of action, including suits arising under federal statutes. See, e.g., Doe v. University of Ill., 138 F.3d 653, 656-57 (7th Cir.1998). State sovereign immunity, however, is not absolute: A state may consent to suit in federal court ¹ and, under certain circumstances, Congress may abrogate a state's Eleventh Amendment immunity.

Congress may constitutionally abrogate the States' Eleventh Amendment immunity under a particular statute if it both unequivocally expresses its intent to do so and acts pursuant to a valid exercise of power. See Seminole Tribe, 517 U.S. at 55, 116 S.Ct. 1114. With respect to the latter inquiry, Seminole Tribe rejected the notion that the Indian Commerce Clause, U.S. Const. art. I, § 8, cl. 3, confers upon Congress the power to abrogate the States' Eleventh Amendment immunity. See id. at 71-73, 116 S.Ct. 1114 ("The Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction."). In so holding, the Court also explicitly overruled Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989), in which a plurality of the Court held that the Interstate Commerce Clause, U.S. Const. art. I, § 8, cl. 3, gave Congress the power to abrogate state sovereign immunity. See 517 U.S. at 63-66, 116 S.Ct. 1114.

The Court in Seminole Tribe reaffirmed, however, that valid legislation pursuant to § 5 of the Fourteenth Amendment could serve as a basis for abrogating state sovereign immunity. ² See id. at 59-60, 63-66, 116 S.Ct. 1114 (discussing Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976)) ("Fitzpatrick was based upon a rationale wholly inapplicable to the Interstate Commerce Clause, viz., that the Fourteenth Amendment, adopted well after the adoption of the Eleventh Amendment and the ratification of the Constitution, operated to alter the pre-existing balance between state and federal power achieved by Article III and the Eleventh Amendment."). Thus, "[e]ven after Seminole Tribe, 'the Eleventh Amendment does not insulate the states from suits in federal courts to enforce federal statutes enacted under the authority of the Fourteenth Amendment.' " Goshtasby v. Board of Trustees of the Univ. of Ill., 141 F.3d 761, 766 (7th Cir.1998) (quoting Crawford v. Indiana Dep't of Corrections, 115 F.3d 481, 487 (7th Cir.1997)).

The University raises a number of arguments contending that Congress did not validly abrogate the States' Eleventh Amendment immunity when it passed the Equal Pay Act. First, the University asserts that the Equal Pay Act does not contain a clear and unequivocal expression of Congress's intent to abrogate the States' immunity. Second, the University posits that Congress passed the Equal Pay Act pursuant to its power under the Commerce Clause and not pursuant to its power under § 5. The University argues that, following Seminole Tribe, Commerce Clause legislation cannot validly abrogate the States' immunity from suit in federal court. Third, the University asserts that the Equal Pay Act does not constitute valid legislation under Congress's § 5 power in any event. In this context, the University relies on the Supreme Court's interpretation of § 5 in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), in conjunction with the fact that the Equal Pay Act does not require proof of intentional discrimination to support a valid claim for relief. The University's Title VII argument is more narrow. It concedes that Title VII itself contains a clear statement of legislative intent to abrogate the States' immunity. See Fitzpatrick, 427 U.S. at 456, 96 S.Ct. 2666. However, the University argues that 42 U.S.C. § 1981a, which made available a compensatory damages remedy to Title VII plaintiffs, is a distinct statute from Title VII that does not contain its own statement of congressional intent to abrogate the States' Eleventh Amendment immunity. We address these arguments in turn.

II. The Equal Pay Act

A. Intent to Abrogate

In deciding whether Congress unequivocally expressed its intent to abrogate the States' Eleventh Amendment immunity under the Equal Pay Act, it is helpful to consider the context and history of the statute. Congress passed the Equal Pay Act of 1963, Pub.L. No. 88-38, 77 Stat. 56 (codified at 29 U.S.C. § 206(d)), as an amendment to the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201 to § 219. The Equal Pay Act, which prohibits wage disparities on the basis of sex, ³ therefore employs the same definitional and enforcement provisions as do the overtime and minimum wage provisions of the FLSA. See 29 U.S.C. §§ 203, 206-07, 216; see also Timmer v. Michigan Dep't of Commerce, 104 F.3d 833, 838 n. 6 (6th Cir.1997). In 1966, Congress amended the FLSA's definition of "employer" to include state government workers employed in hospitals, institutions, or schools. See Pub.L. No. 89-601 § 102(b), 80 Stat. 831 (amending 29 U.S.C. § 203(d)). The Supreme Court subsequently held, however, that the 1966 amendment to the FLSA did not abrogate the States' immunity from suit in federal court. See Employees v. Department of Pub. Health & Welfare, 411 U.S. 279, 284-86, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973). As we have noted, see Mueller v. Thompson, 133 F.3d 1063, 1065 (7th Cir.1998), Congress responded to Employees by amending certain provisions of the FLSA in the Fair Labor Standards Amendments of 1974, Pub.L. No. 93-259, 88 Stat. 55, including its definitions of "employer," 29 U.S.C. § 203(d) & (x), and "employee," id. § 203(e)(2)(c), as well as its enforcement provision, id. § 216(b). ⁴

Following the 1974 amendments to the FLSA, the...