Wanner v. State of Kan.

• Decision Date: 28 June 1991
• Docket Number: No. 89-4046-R.,89-4046-R.
• Citation: 766 F. Supp. 1005
• Parties: Bernard C. WANNER, Edward L. Marcotte and Harlan C. Counter, Plaintiffs, v. STATE OF KANSAS, Department of Administration and Edward A. DeVilbiss, Defendants.
• Court: U.S. District Court — District of Kansas

766 F. Supp. 1005

Bernard C. WANNER, Edward L. Marcotte and Harlan C. Counter, Plaintiffs, v. STATE OF KANSAS, Department of Administration and Edward A. DeVilbiss, Defendants.

No. 89-4046-R.

United States District Court, D. Kansas.

June 28, 1991.

K. Gary Sebelius, Catherine A. Walter, Davis, Wright, Unrein, Hummer & McCallister, Topeka, Kan., for plaintiffs.

Malcolm R. Burns, Lawrence, Kan., Billy E. Newman, Kansas Dept. of Admin., Linda J. Fund, Topeka, Kan., for defendants.

MEMORANDUM AND ORDER

ROGERS, District Judge.

This is an action brought by three former employees of the State of Kansas pursuant to the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and the Kansas Age Discrimination in Employment Act (KADEA), K.S.A. 44-1111 et seq. The plaintiffs were employed in the Department of Administration and all contend that they were terminated from their employment because of their age. The defendants are the State of Kansas; the Department of Administration; and Edward A. DeVilbiss, the Director of the Division of Architectural Services within the Department of Administration. This matter is presently before the court upon defendants' motion for summary judgment.

In considering a motion for summary judgment, the court must examine all the evidence in the light most favorable to the adverse party. Barber v. General Electric Co., 648 F.2d 1272, 1276 n. 1 (10th Cir. 1981). Summary judgment is proper only when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Under this rule, the initial burden is on the moving party to show the court "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). The moving party's burden may be met when that party identifies those portions of the record which demonstrate the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. at 2553.

Once the moving party has met these requirements, the burden shifts to the party resisting the motion. The non-moving party must "make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S.Ct. at 2552. The party resisting the motion "may not rest upon the mere allegations or denials of his pleadings" to avoid summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The mere existence of a scintilla of evidence will not avoid summary judgment; there must be sufficient evidence on which a jury could reasonably find for the nonmoving party. Id. at 251, 106 S.Ct. at 2511 (quoting Improvement Co. v. Munson, 81 U.S. (14 Wall.) 442, 448, 20 L.Ed. 867 (1872)).

The defendants contend initially that defendant DeVilbiss is not a proper defendant to plaintiffs' ADEA claims because he is not an employer under the ADEA. Plaintiffs contend that DeVilbiss is an employer under the ADEA based on an examination of the legislative history of the ADEA, case law under the ADEA, and case law from Title VII actions.

The question presented by the arguments of the parties is whether an agent of a political subdivision of a state is an employer under the ADEA. The term "employer" under the ADEA means "a person engaged in an industry affecting commerce who has twenty or more employees ... and (1) any agent of such a person, and (2) a State or political subdivision of a State...." 29 U.S.C. § 630(b). Title VII, on the other hand, defines "employer" as "a person engaged in an industry affecting commerce who has fifteen or more employees ... and any agent of such a person." 42 U.S.C. § 2000e. The statutes provide further definitions of the term "person." The ADEA's definition of "person" does not include states and their subdivisions, 29 U.S.C. § 630(a), while Title VII's definition of "person" does include political subdivisions, 42 U.S.C. § 2000e(a).

In Ditch v. Board of County Commissioners, 650 F.Supp. 1245 (D.Kan.1986), modified on other grounds, 669 F.Supp. 1553 (D.Kan.1987), Judge Saffels examined the differences in the definitions of the two statutes and concluded that state employees were not employers within the meaning of the ADEA. He reasoned as follows:

Title VII's definition of employer includes a person engaged in an industry affecting commerce and any agent of such a person. Title VII's definition of person includes political subdivisions. Therefore, it is no great revelation to hold that agents of political subdivisions, such as the county commissioners in this case, can be held personally liable as employers under the statute. In fact, such a holding makes perfect sense and is mandated by the language of the statute. However, to find no distinction between the Title VII and the ADEA definitions of employer simply because of the policy behind the statutes borders on judicial activism in its plainest sense. In enacting the ADEA, Congress explicitly excluded states and their political subdivisions from the definition of person, opting rather to include them as a separate and distinct category of employer. Within one sentence, Congress established the separate and distinct liability of (1) agents of persons and (2) states and political subdivisions. Congress made no provision for agents of states and political subdivisions. It would have only required the insertion of the short phrase "and their agents" in 29 U.S.C. § 630(b)(2) to express Congress' intent to hold individuals such as these defendants liable for age discrimination. If ever the maxim expressio unius est exclusio alterius is applicable, it is this situation. This court cannot invalidate the express terms of a federal statute under the guise of applying a policy of liberal construction, regardless of the ultimate ends that would be furthered. (citations omitted and emphasis in original).

650 F.Supp. at 1251.

Although this court is not totally satisfied with this result, we are inclined to follow Judge Saffels' conclusion. Although similar, the definition provisions of Title VII and the ADEA are not identical, and unlike the comparable Title VII provision, the ADEA does not include agents of state agencies within the definition of "employer." In order to follow plaintiffs' contention, the court would be forced to rewrite the ADEA statute. This is a job for Congress, not for this court. Other judges, including Judge Theis of this district, have also concluded that agents of a state or a political subdivision are not employers within the meaning of 29 U.S.C. § 630(b). Tranello v. Frey, 758 F.Supp. 841, 851-52 (W.D.N.Y.1991); Sagarino v. Town of Danvers, 750 F.Supp. 51, 52 (D.Mass.1990); Price v. County of Erie, 654 F.Supp. 1206, 1207 (W.D.N.Y.1987); Young v. Sedgwick County, 660 F.Supp. 918, 924 (D.Kan.1987); McCroan v. Bailey, 543 F.Supp. 1201, 1210-11 (S.D.Ga.1982). Contra: Coffin v. South Carolina Dept. of Social Services, 562 F.Supp. 579 (D.S.C.1983); Goodman v. Board of Trustees, 498 F.Supp. 1329 (N.D. Ill.1980). In sum, the court finds that defendant DeVilbiss must be dismissed as a defendant to plaintiffs' ADEA claims.

With the dismissal of plaintiffs' ADEA claims against defendant DeVilbiss, we must consider defendants' argument that the court lacks jurisdiction to consider plaintiffs' KADEA claims against DeVilbiss. This requires the court to examine the concept of "pendent-party jurisdiction." Pendent-party jurisdiction involves claims against "parties not named in any claim that is independently cognizable by the federal court." Finley v. United States, 490 U.S. 545, 549, 109 S.Ct. 2003, 2006, 104 L.Ed.2d 593 (1989). In Finley, the Supreme Court held that the exercise of pendent-party jurisdiction required that the text of the jurisdictional statute at issue establish a basis for the pendent-party jurisdiction. Id. at 552, 109 S.Ct. at 2008. This court is unable to find an independent basis for pendent-party jurisdiction under the jurisdictional section of the ADEA. Constant v. Continental Telephone Co. of Illinois, 745 F.Supp. 1374, 1388 (C.D.Ill. 1990). Accordingly, plaintiffs' pendent state claims under the KADEA against defendant DeVilbiss must be dismissed. With this decision, the court need not consider defendants' additional argument that defendant DeVilbiss is not a proper defendant to plaintiffs' claims under the KADEA.

The defendants next contend that plaintiff Wanner is not entitled to protection under the ADEA because he was not an "employee" as defined by the ADEA. Defendants assert that Wanner was not an "employee" because he was excluded from coverage under the ADEA as an appointee on the policymaking level not subject to the civil service laws of the State of Kansas. Wanner responds that the record demonstrates that he was an employee covered by the ADEA.

The ADEA defines "employee" as follows:

The term "employee" means an individual employed by any employer except that the term "employee" shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policymaking level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency, or political subdivision. The term "employee" includes any individual who is a citizen of the United States employed by an employer in a workplace in a foreign country.

29 U.S.C. § 630(f).

The defendants have analyzed this definition and concluded that the following four classes of individuals are exempted from the definition: (1) any person elected to...