United States District Court, Central District of Illinois
September 24, 1996
DR. IRIS I. VARNER, DR. TERESA M. PALMER, AND DR. PAULA J. POMERENKE, ON THEIR OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
ILLINOIS STATE UNIVERSITY; ROBERT W. JEFFERSON, DEAN; DAVID STRAND, PROVOST; JOHN K. URICE, VICE PRESIDENT AND PROVOST; THOMAS P. WALLACE, PRESIDENT; THE BOARD OF REGENTS; INCLUDING DAVID T. MURPHY; CAROL K. BURNS; JOSEPH B. EBBESEN; CARL E. KASTEN; NANCY J. MASTERSON; PATRICIA A. MCKENZIE; JAMES W. MYLES; BARBARA SCHEIBLING; NIRANJAN SHAH; AND WILLIAM SULASKI, INDIVIDUALLY AND IN THEIR CAPACITY AS MEMBERS OF THE BOARD OF REGENTS, DEFENDANTS.
The opinion of the court was delivered by: Mihm, Chief Judge.
This matter is before the Court on Defendants' Motion to
Dismiss [# 71] and Plaintiffs' Motion to Vacate Prior Order
and for Extension of Time [# 81]. For the reasons set forth
below, the Defendants' Motion is GRANTED in part and DENIED in
part, and Plaintiffs' Motion is DENIED.
On March 13, 1995, three female professors employed at
Illinois State University ("the University"), Dr. Iris I.
Varner, Dr. Teresa M. Palmer, and Dr. Paula J. Pomerenke,
filed a Complaint against Illinois State University, four
officials of Illinois State University, the Board of Regents,
and the ten members of the board. The Complaint has been
certified as a class action on behalf of any female teaching
faculty at Illinois State University who was an Assistant
Professor, Associate Professor, or full Professor anytime
during the period beginning with the 1982-1983 academic year
up to and including the present.
The named Plaintiffs have been employed by the University as
teaching faculty (in the case of one Plaintiff since 1969).
Drs. Varner, Palmer, and Pomerenke allege that from the dates
of their respective employment, they have been paid less than
their male counterparts, given considerations of teaching
experience, the number of classes and class size they taught,
academic papers published, service to the University, and
other matters to go to the quality of their services. The
Complaint further alleges that the Defendants
engaged in retaliation against female professors who
complained of the Defendants' alleged employment practices.
Plaintiffs brought this suit pursuant to the Equal Pay Act,
29 U.S.C. § 201, et seq.; Title VII of the Civil Rights Act,
42 U.S.C. § 2000e, et seq.; and the Civil Rights Act of 1991,
42 U.S.C. § 1981, et seq. This Court has jurisdiction of this
action pursuant to Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e, et seq.; the Equal Pay Act of 1963,
29 U.S.C. § 201, et seq.; and the Civil Rights Act of 1991,
42 U.S.C. § 1981, et seq.
In resolving a motion to dismiss, this Court must consider
all well-pled facts as true and must draw all inferences in
favor of the non-moving party. Bontkowski v. First Nat. Bank of
Cicero, 998 F.2d 459, 461 (7th Cir.), cert. denied,
510 U.S. 1012, 114 S.Ct. 602, 126 L.Ed.2d 567 (1993). In ruling on a
motion to dismiss, courts consider whether relief is possible
under any set of facts that could be established consistent
with the allegations in the Complaint. Conley v. Gibson,
355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). This
Court will dismiss a claim only if it is beyond doubt that no
set of facts would entitle the Plaintiffs to relief. Venture
Associates Corp. v. Zenith Data Systems Corp., 987 F.2d 429,
432 (7th Cir. 1993).
On August 14, 1996, Defendants filed a Motion to Dismiss, to
which Plaintiffs filed a Response instanter on September 10,
1996. In support of their Motion to Dismiss, Defendants make
the following arguments: (1) By adding a Defendant, Plaintiffs
have amended the pleadings and should file an amended
complaint; and (2) Plaintiffs cannot proceed in federal court
on any claims based on the Equal Pay Act because the State of
Illinois has not consented to suit. Each of these arguments
will be addressed in turn.
John Urice ("Urice") was initially named as a Defendant in
this case. However, Judge James B. Zagel of the Northern
District of Illinois dismissed Urice in an Order dated August
18, 1995 because Urice was not alleged to have participated in
the basic claims of gender discrimination and had been sued in
his individual capacity. Plaintiffs then filed a related suit
making similar allegations against Urice, Case No. 96-1355. On
July 15, 1996, Plaintiffs filed a Motion before this Court to
add Urice as a Defendant once again. The Court granted
Plaintiffs' Motion on July 26, 1996, stating that Urice was to
be added as a named Defendant in this case, and Plaintiffs
were to submit a voluntary dismissal regarding the related
case against Urice. To date, Plaintiffs have taken no steps to
implement this Court's Order.
Plaintiffs have not only failed to file an amended complaint
adding Urice to the present case, but they have also failed to
dismiss the related action. Rather, Plaintiffs state that they
are exercising "an abundance of caution" and have moved to
vacate the order they requested adding Urice as a Defendant in
order "to keep the Title VII and § 1981 claims presented in
96-1355 separate from the issues raised by Defendants under the
Equal Pay Act." (Plaintiffs' Resp. to Mot. to Dismiss at 2.)
Plaintiffs have presented no logical or practical reason why
two separate suits should be conducted based on the same set of
facts and similar issues. Accordingly, Plaintiffs' Motion to
Vacate Prior Order is denied.
Defendants argue that adding a party generally requires an
amendment to the Complaint. In the present case, they claim
that the addition of Urice as a Defendant requires Plaintiffs
to file an amended complaint because there are no allegations
currently pending against him as a result of Judge Zagel's
previous Order dismissing Urice from the case. Thus, without
an amended complaint, Defendants claim that it is not
currently possible to determine what allegations are pending
While notice pleading may not require a plaintiff to plead
in great detail, Rule 8 does require sufficient clarity to
determine that "the pleader is entitled to relief." Fed.
The primary purpose of these provisions is rooted
in fair notice: Under Rule 8, a complaint "must
be presented with intelligibility
sufficient for a court or opposing party to
understand whether a valid claim is alleged and
if so what it is."
Vicom, Inc. v. Harbridge Merchant Services, Inc., 20 F.3d 771,
775 (7th Cir. 1994) (citations omitted). The Court also noted
that a properly pled complaint allows the defendant to
formulate an answer. Id. at 776. Additionally, "[w]here an
amendment of pleadings is necessary for purposes of clarity or
otherwise, after parties have been added, the complaint should
be amended." Fair Housing Development Fund Corp. v. Burke, 55
F.R.D. 414, 415 (D.C.N.Y. 1972) (quoting Bartels v. Sperti,
Inc., 73 F. Supp. 751 (S.D.N.Y. 1947)).
The Court granted Plaintiffs' Motion to add Urice as a
Defendant with the understanding that the claims raised in the
related case were similar to those raised in the present case
and involved the same set of basic facts. In doing so, the
Court sought to eliminate unnecessary duplication and maximize
judicial efficiency. However, Plaintiffs have not amended
their Complaint to add Urice. Based on Judge Zagel's previous
dismissal of Urice from this case, principles of res judicata
prevent Urice from being called upon once again to answer the
same Complaint. To the extent that Defendants' Motion requests
that the entire suit be dismissed on these grounds, that
portion of the Motion to Dismiss is denied. Nevertheless, the
portion of Defendants' Motion to Dismiss requesting that Urice
be dismissed for failure to file an amended complaint stating
any allegations against Urice is granted. Plaintiffs have 21
days to file an Amended Complaint in this case including
allegations against Urice and to voluntarily dismiss the
related suit, Case No. 96-1355, in compliance with this
Court's July 26, 1996 Order.
Defendants ask the Court to confirm that Urice, like the
other Defendants in the case, may only be sued in his official
capacity. Judge Zagel's August 18, 1995 Order held that Title
VII did not permit suits against supervisory employees and
dismissed all claims against Defendants in their individual
capacities. However, Judge Zagel refused to dismiss claims
against Defendants in their individual capacities with respect
to the Equal Pay Act claims, with the exception of Urice.
Thus, with respect to Title VII claims, Urice, like the other
Defendants, may only be sued in his official capacity, but no
such restriction would apply with respect to Equal Pay Act
claims or other claims that may be made against Urice in the
In their Motion to Dismiss, Defendants also allege that any
claims based on the Equal Pay Act or other parts of the Fair
Labor Standards Act should be dismissed because the State of
Illinois has not consented to suit in federal court and such
a suit therefore is prohibited by the Eleventh Amendment.
Defendants cite Seminole Tribe of Florida v. Florida,
517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), for the proposition
that this Court lacks jurisdiction over these claims because
Congress did not expressly waive the sovereign immunity
afforded by the Eleventh Amendment to the United States
In Seminole Tribe, the Court examined a provision of the
Indian Gaming Regulatory Act ("the Act"),
25 U.S.C. § 2710(d)(3)(A), which requires that States negotiate in good
faith with Indian tribes. The Act authorizes an Indian tribe to
sue a State for breaching the duty to negotiate in good faith.
25 U.S.C. § 2710(d)(7). The Court found that Congress did not
have the authority to waive Eleventh Amendment immunity under
the Indian Commerce Clause and, therefore, federal courts do
not have jurisdiction to hear cases arising under the Act
because the State had not consented to suit. Seminole Tribe,
517 U.S. at 73-74, 116 S.Ct. at 1132-33.
Prior to the expansive view of sovereign immunity expressed
in Seminole Tribe, the Supreme Court had recognized
congressional authority to abrogate a state's sovereign
immunity when legislation was enacted pursuant to either § 5 of
the Fourteenth Amendment or the Interstate Commerce Clause,
based on Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49
L.Ed.2d 614 (1976), and Pennsylvania v. Union Gas Co.,
491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989), respectively. Seminole
Tribe, 517 U.S. at 58, 116 S.Ct. at 1125. The Court overruled
its prior holding in Union Gas, stating that "both the result
in Union Gas and the plurality's rationale
depart from our established understanding of the Eleventh
Amendment and undermine the accepted function of Article III."
Id. The Court found that Congress could not overcome the
jurisdictional bar of the Eleventh Amendment when legislating
pursuant to the Interstate Commerce Clause because "Article I
cannot be used to circumvent the constitutional limitations
placed upon federal jurisdiction" by Article III. Id., at 73,
116 S.Ct. at 1132. However, the Court did not disturb its prior
decisions with respect to legislation enacted pursuant to the
Fourteenth Amendment, "which operated to alter the preexisting
balance between state and federal power achieved by Article III
and the Eleventh Amendment." Id., at 63, 116 S.Ct. at 1128.
Thus, in the wake of Seminole Tribe, the only source of
congressional authority capable of abrogating sovereign
immunity under the Eleventh Amendment that has been recognized
by the Supreme Court is legislation enacted pursuant to § 5 of
the Fourteenth Amendment.
As noted by the Defendants, the Equal Pay Act is part of the
Fair Labor Standards Act of 1938 ("FLSA"). Congress expressly
stated that it was enacting the FLSA pursuant to its power
under the Commerce Clause:
It is declared to be the policy of this chapter,
through the exercise by Congress of its power to
regulate commerce among the several States and
with foreign nations, to correct and as rapidly
as practicable to eliminate the conditions above
referred to in such industies [sic] without
substantially curtailing employment or earning
29 U.S.C. § 202(b); see also Marshall v. City of Sheboygan,
577 F.2d 1, 6 (7th Cir. 1978) (finding that the Equal Pay Act is a
valid exercise of Congress' power under the Commerce Clause).
Plaintiffs admit that the FLSA was enacted pursuant to
Congress' power under the Commerce Clause but argue that the
portion of the FLSA constituting the Equal Pay Act was enacted
in furtherance of the equal protection clause of the
Fourteenth Amendment and therefore should be undisturbed by
Seminole Tribe, citing Marshall v. Owensboro-Daviess County
Hospital, 581 F.2d 116 (6th Cir. 1978), in support of this
position. In Marshall, the Sixth Circuit found that the Equal
Pay Act amendments to the FLSA were authorized by § 5 of the
Fourteenth Amendment. Id. at 119 (quoting Usery v. Allegheny
County Institution Dist., 544 F.2d 148 (3rd Cir. 1976),
cert. denied, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793
(1977), and Usery v. Charleston County School Dist.,
558 F.2d 1169 (4th Cir. 1977)).
In Allegheny County, the Third Circuit rejected the
proposition that because the Equal Pay Act is housed within the
FLSA and uses its administrative and enforcement mechanisms, it
is necessarily a Commerce Clause enactment. 544 F.2d at 155.
Rather, "the Equal Pay Act is a separate law, enacted at a
different time, and aimed at a separate problem —
discrimination on account of sex in the payment of wages" and
"Congress has § 5 fourteenth amendment power to prohibit sex
discrimination." Id. The Fourth Circuit adopted this view in
Charleston County, adding that, unlike the other provisions of
[T]he Equal Pay Act is an anti-discrimination
measure; and, as such, may be viewed as an
exercise of Congress' power to adopt legislation
enforcing the Fourteenth Amendment's guarantee of
equal protection of the law.
558 F.2d at 1170.
The Seventh Circuit has adopted analogous reasoning with
respect to the Age Discrimination in Employment Act ("ADEA"),
which was also amended to authorize suits against state and
local governments. Equal Employment Opportunity Commission v.
Elrod, 674 F.2d 601 (7th Cir. 1982). In Elrod, the Seventh
Circuit set forth the test for determining whether legislation
is enacted pursuant to § 5 of the Fourteenth Amendment as
"whether the objectives of the legislation are within Congress'
power under the amendment." 674 F.2d at 608 (emphasis in
The Seventh Circuit found that-despite the fact that the
ADEA was enacted pursuant to the Commerce Clause, it was also
a valid exercise of Congress' power under the Fourteenth
Amendment. Id. at 603; see also,
Davidson v. Board of Governors of State Colleges, 920 F.2d 441,
443 (7th Cir. 1990). Prohibiting arbitrary or discriminatory
government conduct is the "very essence" of the guarantee of
equal protection under the Fourteenth Amendment. Elrod, 674
F.2d at 604. This reasoning is also consistent with the
reasoning of the Supreme Court with regard to Title VII in
Fitzpatrick, which was affirmed in Seminole Tribe. 517 U.S. at
58, 63, 116 S.Ct. at 1125, 1128.
In light of the Seventh Circuit's reasoning in connection
with the ADEA cases, this Court agrees with the position taken
by the Third, Fourth, and Sixth Circuits that the portion of
the FLSA constituting the Equal Pay Act was enacted to
prohibit discrimination in pay based on sex in furtherance of
the equal protection clause of the Fourteenth Amendment.
Therefore, sovereign immunity would not insulate the State of
Illinois from suit under Seminole Tribe. Accordingly, the
portion of Defendants' Motion requesting dismissal of all
claims based on the Equal Pay Act is denied.
For the reasons set forth herein, the portion of Defendants'
Motion to Dismiss [# 71] requesting dismissal with leave to
file an amended complaint adding Urice as a defendant is
GRANTED and the portion requesting dismissal of the Equal Pay
Act claims is DENIED. Plaintiffs' Motion to Vacate Prior Order
and for Extension of Time [# 81] is DENIED. Plaintiffs have 21
days to file an Amended Complaint in this case including
allegations against Urice and to voluntarily dismiss the
related suit, Case No. 96-1355. This case is referred to
Magistrate Judge Robert J. Kauffman.
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