Velasquez v. Frapwell, Nos. 98-1547

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore POSNER, Chief Judge, and CUMMINGS and EVANS; POSNER
Citation160 F.3d 389
Parties159 L.R.R.M. (BNA) 2782, 74 Empl. Prac. Dec. P 45,585, 130 Ed. Law Rep. 511 Albert J. VELASQUEZ, Plaintiff-Appellant, v. Dorothy J. FRAPWELL and the Trustees of Indiana University, Defendants-Appellees, and United States of America, Intervening Plaintiff-Appellant.
Docket Number98-2034,Nos. 98-1547
Decision Date12 November 1998

Page 389

160 F.3d 389
159 L.R.R.M. (BNA) 2782, 74 Empl. Prac. Dec. P
45,585,
130 Ed. Law Rep. 511
Albert J. VELASQUEZ, Plaintiff-Appellant,
v.
Dorothy J. FRAPWELL and the Trustees of Indiana University,
Defendants-Appellees,
and
United States of America, Intervening Plaintiff-Appellant.
Nos. 98-1547, 98-2034.
United States Court of Appeals,
Seventh Circuit.
Argued Oct. 2, 1998.
Decided Nov. 12, 1998.

Page 390

Michael A. Kiefer (argued), Garrison & Kiefer, Indianapolis, IN, for Albert J. Velasquez in No. 98-1547.

Susan B. Tabler, Pamela V. Keller (argued), Ice, Miller, Donadio & Ryan, Indianapolis, IN, for Dorothy J. Frapwell.

Pamela V. Keller (argued), Ice, Miller, Donadio & Ryan, Indianapolis, IN, for Trustees of Indiana University in No. 98-1547.

Michael A. Kiefer, Garrison & Kiefer, Indianapolis, IN, for Albert J. Velasquez in No. 98-2034.

Susan B. Tabler, Pamela V. Keller (argued), Ice, Miller, Donadio & Ryan, Indianapolis, IN, for Trustees of Indiana University in No. 98-2034.

Mark Stern, Department of Justice, Civil Division, Appellate Section, Carl E. Goldfarb (argued), Department of Justice, Civil Division, Appellate Staff, Washington D.C., for United States in No. 98-2034.

Before POSNER, Chief Judge, and CUMMINGS and EVANS, Circuit Judges.

POSNER, Chief Judge.

The plaintiff was employed as a lawyer by Indiana University. He was fired, and sued the University, seeking damages. The suit charges national-origin discrimination (the plaintiff is Hispanic) in violation both of Title VII and the equal protection clause. It also (and this turns out to be the more interesting part of the case) charges a violation of the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. §§ 4301 et seq. USERRA forbids employment discrimination on the basis of membership in the armed forces, § 4311(a), and authorizes private suits for damages or injunctive relief against the employer--including a state employer. §§ 4303(4)(A)(iii), 4323(c)(1)(A), (3), (7). Velasquez is a member of the Indiana National Guard, and he contends that he was fired in part because of absences from his university job that were necessitated by his national guard work.

The district court granted summary judgment for the University on the national-origin claim and dismissed the USERRA claim as barred by the Eleventh Amendment; Indiana University is conceded to be an arm of the State of Indiana. Woods v. Indiana University-Purdue University, 996 F.2d 880, 883 (7th Cir.1993); Shelton v. Trustees of Indiana University, 891 F.2d 165, 166 (7th Cir.1989); Kashani v. Purdue University, 813 F.2d 843 (7th Cir.1987); see Regents of University of California v. Doe, 519 U.S. 425, 117 S.Ct. 900, 137 L.Ed.2d 55 (1997). The United States intervened in the suit, as was its right, 28 U.S.C. § 2403(a); Varner v. Illinois State University, 150 F.3d 706, 708 (7th Cir.1998); College Savings Bank v. Florida

Page 391

Prepaid Postsecondary Education Expense Board, 148 F.3d 1343, 1346 (Fed.Cir.1998); In re Creative Goldsmiths of Washington, D.C., Inc., 119 F.3d 1140, 1143 (4th Cir.1997), to defend the statute. USERRA explicitly subjects states to liability for violating it, 38 U.S.C. § 4323(c)(2)(B)(7), and the effect of the district court's invoking the Eleventh Amendment was to invalidate this provision. Although one count of the complaint names the plaintiff's supervisor as defendant, the count based on USERRA names only the university, that is, the state.

The Supreme Court held recently that Congress cannot abrogate a state's sovereign immunity by a federal statute based on Congress's power over various forms of commerce, because that power was conferred on Congress by the original Constitution, which predates the Eleventh Amendment and so cannot limit it. Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). Velasquez responds that USERRA is based on section 5 of the Fourteenth Amendment, and the United States that it is based on the grant of war powers in Article I and that this grant should be treated differently from the grant of power over commerce. Velasquez also supports the argument of the United States, but the United States takes no position on Velasquez's invocation of the Fourteenth Amendment.

Section 5 authorizes Congress to pass statutes enforcing the amendment's other provisions, and since it both postdates the Eleventh Amendment and is part of an amendment designed to shift power from the states to the federal government, it is not limited by the earlier amendment. Seminole Tribe v. Florida, supra, 517 U.S. at 65-66, 116 S.Ct. 1114; Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). Velasquez argues that USERRA enforces the equal protection clause of the Fourteenth Amendment by creating remedies for military personnel who are discriminated against on the basis of their military status. Little significance can be attached to the fact that the statute does not purport to be based on section 5. EEOC v. Wyoming, 460 U.S. 226, 243 n. 18, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983); Varner v. Illinois State University, supra, 150 F.3d at 712; Doe v. University of Illinois, 138 F.3d 653, 658-60 (7th Cir.1998); Goshtasby v. Board of Trustees, 141 F.3d 761, 768 (7th Cir.1998); Ussery v. Louisiana, 150 F.3d 431, 436-37 (5th Cir.1998). USERRA does not indicate which provision or provisions of the Constitution authorize it; Congress could not have cared; it would doubtless be happy if any provision enabled the section of USERRA that authorizes suits against the state to survive challenge under the Eleventh Amendment. If that provision is section 5 of the Fourteenth Amendment, Congress would hardly object to our holding that USERRA is authorized by section 5's grant of power to Congress.

But if section 5 is not to be distended beyond all reasonable bounds, it cannot be used to authorize legislation so remote from the policies and objectives of the equal protection clause as this statute is. City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997); Mills v. Maine, 118 F.3d 37, 47-49 (1st Cir.1997); see generally Pennhurst State School v. Halderman, 451 U.S. 1, 15-17, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), warning against expansive interpretations of section 5. To begin with, there can be no contention that to fire a worker because his military service prevents him from discharging the duties of his civil job actually violates the equal protection clause; for there is no invidious or irrational discrimination in such an action. So there can be no question of USERRA's "enforcing" a provision of the Fourteenth Amendment in a literal sense. Nor do military personnel constitute a historically disadvantaged ("suspect") class, like members of racial and religious minorities, who might be thought in need of special protections--of a glacis in front of the core prohibitions of the amendment--in order to make those prohibitions fully effective. E.g., City of Rome v. United States, 446 U.S. 156, 177-78, 100 S.Ct. 1548, 64 L.Ed.2d 119 (1980); Varner v. Illinois State University, supra, 150 F.3d at 716-17. Military personnel are no more a discrete and insular minority than police or firemen. Rumsey v. New York State Dept. of Correctional Services, 19 F.3d 83, 92 (2d Cir.1994).

Page 392

We are mindful that the Supreme Court said much the same thing about persons 50 years old and older in Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 313-14, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976) (per...

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27 practice notes
  • Clark v. Va. Dep't of State Police, Record No. 151857
    • United States
    • Virginia Supreme Court of Virginia
    • December 1, 2016
    ...of state sovereign immunity. See, e.g. , Ysleta del sur Pueblo v. Raney , 199 F.3d 281, 288 (5th Cir. 2000) ; Velasquez v. Frapwell , 160 F.3d 389, 395 (7th Cir. 1998), vacated on other grounds , 165 F.3d 593 (7th Cir. 1999) (per curiam); Sacred Heart Hosp. v. Pennsylvania Dep't of Pub. Wel......
  • Hodes & Nauser, MDS, P.A. v. Schmidt, No. 114,153
    • United States
    • United States State Supreme Court of Kansas
    • April 26, 2019
    ...or the training to conduct responsible historical research or competently umpire historical controversies." Velasquez v. Frapwell , 160 F.3d 389, 393 (7th Cir. 1998), vacated in part 165 F.3d 593 (7th Cir. 1999). Though something else Justice Stevens said is likewise true: "Some appellate j......
  • Little Rock School District v. Mauney, PLAINTIFF-APPELLEE
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 15, 1998
    ...whether, at least sometimes, state action based on such a classification results in unconstitutional conduct. See Velasquez v. Frapwell, 160 F.3d 389, 391-92 (7th Cir. 1998). Judge Posner observed that "[b]ecause the aged [and disabled] are not as vulnerable as certain other groups, such as......
  • Travis v. Reno, No. 98-2881
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 16, 1998
    ...the eleventh amendment. See City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997); Velasquez v. Frapwell, 160 F.3d 389 (7th The original plaintiffs--five members of Wisconsin's legislature, one newspaper editor, and one attorney--contend that the Act violates the fi......
  • Request a trial to view additional results
27 cases
  • Clark v. Va. Dep't of State Police, Record No. 151857
    • United States
    • Virginia Supreme Court of Virginia
    • December 1, 2016
    ...of state sovereign immunity. See, e.g. , Ysleta del sur Pueblo v. Raney , 199 F.3d 281, 288 (5th Cir. 2000) ; Velasquez v. Frapwell , 160 F.3d 389, 395 (7th Cir. 1998), vacated on other grounds , 165 F.3d 593 (7th Cir. 1999) (per curiam); Sacred Heart Hosp. v. Pennsylvania Dep't of Pub. Wel......
  • Hodes & Nauser, MDS, P.A. v. Schmidt, No. 114,153
    • United States
    • United States State Supreme Court of Kansas
    • April 26, 2019
    ...or the training to conduct responsible historical research or competently umpire historical controversies." Velasquez v. Frapwell , 160 F.3d 389, 393 (7th Cir. 1998), vacated in part 165 F.3d 593 (7th Cir. 1999). Though something else Justice Stevens said is likewise true: "Some appellate j......
  • Little Rock School District v. Mauney, PLAINTIFF-APPELLEE
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 15, 1998
    ...whether, at least sometimes, state action based on such a classification results in unconstitutional conduct. See Velasquez v. Frapwell, 160 F.3d 389, 391-92 (7th Cir. 1998). Judge Posner observed that "[b]ecause the aged [and disabled] are not as vulnerable as certain other groups, such as......
  • Travis v. Reno, No. 98-2881
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 16, 1998
    ...the eleventh amendment. See City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997); Velasquez v. Frapwell, 160 F.3d 389 (7th The original plaintiffs--five members of Wisconsin's legislature, one newspaper editor, and one attorney--contend that the Act violates the fi......
  • Request a trial to view additional results

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