and that provided certain remedies for various findings that a
court might make against a State defendant. According to the
Court, "numerous references to the `State' . . . make it
indubitable that Congress intended through the Act to abrogate
the States' sovereign immunity from suit." Id. The Court
apparently attached no importance to the fact that the Act did
not explicitly use the words Eleventh Amendment, sovereign
immunity or abrogation.
Before Seminole Tribe, the Supreme Court had held that Congress
had constitutional authority to abrogate Eleventh Amendment
immunity under § 5 of the Fourteenth Amendment and under the
Commerce Clause. In Seminole Tribe, the Court overruled its prior
holding that the Commerce Clause provided such authority, finding
that Article I powers could not be exerted to enlarge Article III
jurisdiction, 517 U.S. at ___, 116 S.Ct. at 1128. Thus, it is
necessary to examine — and where courts have previously
found legitimate Commerce Clause power, to reexamine — the
specific authority exercised by Congress in enacting any
particular legislation in order to determine whether the exercise
Since Seminole Tribe, federal courts across the country have
been asked to assess subject matter jurisdiction in light of the
immunity provided by the Eleventh Amendment and the limitations
on that immunity. The Seventh Circuit has described the immunity
as "expansive," Gorka by Gorka v. Sullivan, 82 F.3d 772, 774 (7th
Cir. 1996) and parties have raised the issue in suits arising
under statutes as varied as the Bankruptcy Code and the Americans
with Disabilities Act.
In this case, the plaintiff has named as defendant the
University of Illinois at Urbana-Champaign Cooperative Extension
Service. The parties do not dispute that the defendant is an arm
of the State of Illinois and thus entitled to the immunities of
the Eleventh Amendment. What is disputed is whether the statutes
forming the foundation for the cause of action meet the "clear
statement" test for abrogation and whether those statutes were
enacted pursuant to § 5 of the Fourteenth Amendment. The statutes
at issue are: the Age Discrimination in Employment Act of 1967,
the Equal Pay Act of 1963, and Title VII as amended by the Civil
Rights Act of 1991. Each will be considered in turn. See, Henry
v. Metropolitan Sewer Dist., 922 F.2d 332, 337 (6th Cir. 1990)
(federal court must examine each claim to see if court's
jurisdiction is barred by the Eleventh Amendment).
Before reaching the analysis for each of the statutes at issue,
however, there is one more general Eleventh Amendment issue that
must be addressed. Defendant also argues that there is a third
part to the abrogation analysis, derived directly from the
language of § 5 of the Fourteenth Amendment empowering Congress
to enforce the Amendment by means of "appropriate" legislation.
Relying on Wilson — Jones v. Caviness, 99 F.3d 203 (6th
Cir. 1996), the defendants argue that legislation based on sex
discrimination or age discrimination is not "appropriate" and
therefore Title VII, the EPA and the ADEA could not have been
enacted under Fourteenth Amendment powers.
In Wilson-Jones, the court was evaluating the FLSA's minimum
wage and overtime provisions in light of Seminole Tribe; none of
the statutes at issue in the pending case were discussed. After
defining "appropriate" as "adapted to carry out the objects the
amendments have in view, . . . tend[ing] to enforce submission to
the prohibitions they contain and to secure to all persons the
enjoyment of perfect equality of civil rights and the equal
protection of the laws," 99 F.3d at 208, the court concluded that
enlarging the scope of the Fourteenth Amendment to the extent
necessary to prevent "discrimination" against state employees, as
compared to private sector employees, would be inconsistent with
and destructive of the important policies of the Amendment.
In reaching that conclusion, the court acknowledged that
elimination of discrimination on the basis of race or gender was
universally recognized as appropriate. Id. at 210. I agree, and
this eliminates this argument as to the EPA and Title VII, both
of which clearly address sex discrimination. As to the ADEA, I
believe discrimination on the basis of age is closer in kind to
the type of discrimination encompassed by the Amendment than was
the class examined in Wilson — Jones.
Thus, even if defendant is correct about the necessity of this
third prong, it is to no avail. I would recommend that the motion
based on this argument be denied.
A. Age Discrimination in Employment.
The Age Discrimination in Employment Act of 1967 (ADEA),
29 U.S.C. § 621 et seq, forms the basis for Count III of plaintiff's
complaint. Defendant's Motion to Dismiss argues that, because the
ADEA contains no unequivocal abrogation of sovereign immunity and
because Congress did not enact the ADEA pursuant to its power
under § 5 of the Fourteenth Amendment, it cannot be enforced
against the State.
1. Intent to Abrogate
The ADEA was enacted in 1967; it allowed for enforcement by
suit in any court of competent jurisdiction but it did not apply
to the States. In 1974, Congress amended the ADEA by amending the
definitions of "employer" to include the States and of "employee"
to include State employees. 29 U.S.C. § 630 (b) and (c). The
means enumerated in the statute for enforcing the substantive
provisions of the Act include "a civil action in any court of
competent jurisdiction for such legal or equitable relief as will
effectuate the purposes of this chapter." 29 U.S.C. § 626 (c)(1).
The statute also provides that its provisions may be enforced "in
accordance with the powers, remedies, and procedures provided in
section . . . 216 . . ." of the Fair Labor Standards act.
29 U.S.C. § 626 (b). Section 216 of the Fair Labor Standards Act,
29 U.S.C. § 216, provides that "an action to recover . . . may be
maintained against any employer (including a public agency) in
any Federal or State Court of competent jurisdiction." "Employer"
includes a "public agency" which is in turn defined as "the
government of a State" or "any agency . . . of a State."
29 U.S.C. § 203 (d), (x).
In a pre-Seminole Tribe case, the Seventh Circuit considered
whether States' liability under ADEA was barred by Eleventh
Amendment immunity. Davidson v. Board of Governors, 920 F.2d 441
(7th Cir. 1990).*fn1 The Court noted the States' inclusion in
the definition of "employer" and pointed out that "an employer
who violates the Act is liable for legal and equitable relief."
Id. at 443. In concluding that Congress had clearly expressed its
intent to subject states to liability under the ADEA, the Court
Unless Congress had said in so many
words that it was abrogating the states'
sovereign immunity in age discrimination
cases — and that degree of explicitness is
not required — it could not have made its
desire to override the states' sovereign
Id. [citations omitted]
Other courts, too, had examined the ADEA and the Eleventh
Amendment before Seminole Tribe. In Gregory v. Ashcroft
501 U.S. 452, 466, 111 S.Ct. 2395, 2403-04, 115 L.Ed.2d 410 (1991), the
Supreme Court concluded (in what is probably dicta*fn2) that
"[t]he ADEA plainly covers all State employees except those
excluded by one of the exceptions." See also, EEOC v. Wyoming,
460 U.S. 226, 233, 103 S.Ct. 1054, 1058-59, 75 L.Ed.2d 18 (1983)
(Congress intended to extend substantive provisions of ADEA to
States); Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 694 (3d
Cir. 1996) (ADEA "leaves no room to dispute" congressional intent
to subject states to suit); Ramirez v. Puerto Rico Fire Serv.,
715 F.2d 694, 701 (1st Cir. 1983) (ADEA's express authorization
for suit against State employers adequate to demonstrate intent
to abrogate); EEOC v. Newport Mesa Unified School Dist.,
893 F. Supp. 927 (C.D.Cal. 1995); Reiff v. Philadelphia County Court of
Common Pleas, 827 F. Supp. 319 (E.D.Pa. 1993).
Defendants argue that these pre-Seminole Tribe cases no longer
pass muster under the "simple but stringent" test that Seminole
Tribe describes. Under this test, defendants assert that it is no
longer enough to show that States are encompassed within the
substantive provisions of a statute or that some manner of
enforcement against the States was contemplated; rather a
specific intent to subject States to suit in federal court must
be found. Arguing that the 1974 amendments to the ADEA did not
explicitly address the right to sue States in federal court,
defendant concludes that the ADEA simply indicates intent to
require State compliance with the substantive provisions of the
ADEA. Other enforcement mechanisms are provided in the text of
the ADEA, and defendant argues that those mechanisms —
including State court litigation and EEOC mediation — may
have been thought by Congress sufficient to achieve the goal of
ensuring State compliance.
There are only a few post-Seminole Tribe cases addressing
congressional intent to abrogate States' Eleventh Amendment
rights under the ADEA, but in each of these cases the court has
concluded that the ADEA's expression of intent to subject States
to suit in federal court was sufficiently clear to satisfy the
first prong of the Seminole Tribe test. See, Hurd v. Pittsburg
State Univ., 109 F.3d 1540, 1544 n. 4 (10th Cir. 1997) (Seminole
Tribe does nothing to change prior ruling that Congress intended
to abrogate when enacting ADEA); MacPherson v. Univ. of
Montevallo, 938 F. Supp. 785, 787 (N.D.Ala. 1996) (Congress
"clearly and unmistakably intended to abrogate"); Hodgson v.
Univ. of Texas Med. Branch, 953 F. Supp. 168, 169 (S.D.Tex. 1997)
(intent to abrogate not disputed by parties); Teichgraeber v.
Memorial Union Corp. of Emporia State Univ., 946 F. Supp. 900,
906 (D.Kan. 1996) (rejecting argument that Seminole Tribe
invalidated prior case law finding intent to abrogate).
While none of the post — Seminole Tribe cases undertook
the type of careful examination of the statutory language
seemingly mandated by Seminole Tribe, I believe they reached the
correct decision. Seminole Tribe's finding of sufficiently clear
articulation of congressional intent to abrogate was based on
specific and repeated references to the State, not only in the
definitional and substantive portions of the statute but most
importantly in remedial provisions that explicitly authorized
enforcement in federal court against States as defendants.
The remedial provisions in the ADEA, and in the portion of the
Fair Labor Standards Act incorporated into the ADEA, clearly
express Congress' intention to provide a federal court remedy for
aggrieved State employees. While defendant is correct that the
statute also provides for other remedies which could be utilized
against the States without implicating the Eleventh Amendment,
that does nothing to negate what I see as a clear textual
statement of intent that satisfies the first prong of the
Seminole Tribe test.
Furthermore, I believe that this court is bound by the Seventh
Circuit's holding in Davidson, supra, as it is directly on point
and not explicitly or implicitly overruled by Seminole Tribe. I
therefore recommend that the court hold that the ADEA meets the
first part of the Seminole Tribe test.
2. Valid exercise of power
In Gregory, 501 U.S. at 463, 111 S.Ct. at 2402, and Wyoming,
460 U.S. 226, 103 S.Ct. 1054, the Supreme Court clearly concluded
that Congress properly exercised its Commerce Clause powers in
extending the ADEA to the states. But after Seminole Tribe the
question is whether Congress properly utilized its Fourteenth
Amendment powers in enacting the ADEA and extending it to the
States*fn3. This question was expressly left open in Wyoming,
460 U.S. at 243, 103 S.Ct.
at 1064, but has been answered affirmatively several times by the
Seventh Circuit. Davidson, 920 F.2d at 443; Heiar v. Crawford
County, 746 F.2d 1190, 1193-94 (7th Cir. 1984); Elrod; 674 F.2d
Seminole Tribe did not alter in any way Congress' Fourteenth
Amendment powers to abrogate Eleventh Amendment immunity, so the
Seventh Circuit cases cited above remain binding on this court.
In addition, several post — Seminole Tribe cases have found
that the ADEA was a valid exercise of Fourteenth Amendment power.
See, Teichgraeber, 946 F. Supp. at 906; Hodgson, 953 F. Supp. at
169. But see, MacPherson, 938 F. Supp. at 789 (agreeing with
dissent in Wyoming and finding the Commerce Clause to be the
"bedrock" of the ADEA).
I recommend that the court find that the ADEA was validly
enacted under the Fourteenth Amendment. The Seventh Circuit has
already ruled on this question, and I believe those cases not
only remain binding but also remain persuasive.
As a result of these two conclusions, namely that, in enacting
the ADEA, Congress intended to abrogate and did so validly, I
recommend that the defendant's motion to dismiss the ADEA claim
B. Equal Pay Act
Count II of plaintiff's complaint is premised upon plaintiff's
claim that defendant's discriminatory practices deprived her of
equal wages and benefits in violation of the Equal Pay Act (EPA),
29 U.S.C. § 206 (d). Defendant argues that the Fair Labor
Standards Act (FLSA), of which the EPA is a part, was enacted
under the Commerce Clause and that Congress expressed therein no
intent to abrogate.
1. Intent to Abrogate
The EPA, provides:
No employer . . . shall discriminate . . .
between employees on the basis of sex by
paying wages . . . at a rate lower than the
rate at which he pays wages to employees
of the opposite sex . . . for equal work . . .
29 U.S.C. § 206 (d).
As in the ADEA, the FLSA defines "employer" to include a
"public agency" which is in turn defined as "the government of a
State" or "any agency . . . of a State." 29 U.S.C. § 203 (d),
(x). The Act provides that an employee may recover for violations
of § 206 by maintaining a cause of action "against any employer
(including a public agency) in any Federal or State court of
competent jurisdiction." 29 U.S.C. § 216 (b).
In 1973, the enforcement provision read differently, providing
only that a cause of action "may be maintained in any court of
competent jurisdiction." The Supreme Court ruled that this
language was insufficiently clear to abrogate the States'
Eleventh Amendment immunity. Employees of the Dept. of Public
Health & Welfare v. Department of Public Health & Welfare,
411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973). In response to
this decision, Congress amended the enforcement provision to read
as it does today. See Pub.L. No. 93-259 § 6(d)(1). In light of
that history, it would seem indisputable that Congress intended
to abrogate. Timmer, 104 F.3d at 837 (Congress "clearly intended"
to abrogate). Digiore v. Illinois, 962 F. Supp. 1064, 1070-71
(N.D.Ill. 1997) ("abundant references" to "State" in the
enforcement provisions suffice to constitute intent to abrogate).
I, therefore, recommend that the court find that Congress
intended to abrogate.
2. Valid exercise of power
The difficult question under the EPA is whether Congress
exercised its Fourteenth Amendment powers. Congress itself stated
that its Commerce Clause powers were being exercised in enacting
the FLSA, of which the EPA is a part. 29 U.S.C. § 202 (b). See
also, Marshall v. Sheboygan, 577 F.2d 1 (7th Cir. 1978); Wilson
— Jones, 99 F.3d 203; Adams v. Kansas, 934 F. Supp. 371
(D.Kan. 1996); Raper v. State of Iowa, 940 F. Supp. 1421
(S.D.Iowa 1996); Mills v. Maine, 1996 WL 400510 (D.Me. July 3,
However, while the EPA may be a part of the FLSA it was enacted
at a different time
and for different purposes. As the Sixth Circuit has found, the
EPA amendments to the FLSA were aimed at the problem of sex
discrimination and were therefore authorized by § 5 of the
Fourteenth Amendment. Timmer, 104 F.3d at 839.*fn4 See also,
Usery v. Allegheny County Inst. Dist., 544 F.2d 148 (3d Cir.
1976), cert. denied; 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793
(1977); Usery v. Charleston County School Dist., 558 F.2d 1169
(4th Cir. 1977). Similar reasoning, noted in the discussion
above, was utilized by the Seventh Circuit in Elrod regarding the
ADEA, in which the Court found that the essence of the Fourteenth
Amendment was the prohibition of discriminatory treatment. 674
F.2d at 604. Judge Mihm has also adopted this reasoning as it
applies to the EPA. See, Varner v. Illinois State Univ., No.
95-1355 (C.D.Ill., Sept. 24, 1996).
I find the reasoning of these courts to be very persuasive and
therefore recommend that the court find that Congress had the
authority under the Fourteenth Amendment to enact the EPA
amendments to the FLSA and therefore validly subjected the States
to suit in federal court.
I recommend that the motion to dismiss the EPA claim on the
basis of Eleventh Amendment immunity be denied, as I believe that
the Seminole Tribe two-part test is satisfied.
Title VII as amended by 42 U.S.C. § 1981a
Counts I and IV of plaintiff's complaint allege violations of
Title VII, 42 U.S.C.A. § 2000e, as amended by the Civil Rights
Act of 1991, 42 U.S.C.A. § 1981a. Defendant's motion challenges
Congress' intent to abrogate State immunity under the Eleventh
1. Intent to Abrogate
Title VII prohibits discrimination in employment. In 1972, the
statute was amended to allow federal courts to award equitable
relief that consisted of money damages (specifically, back pay
and attorney fees) against a State government found to have
discriminated. These amendments were challenged as barred by the
Eleventh Amendment; the Supreme Court upheld them as an
appropriate legislation under Fourteenth Amendment power to
abrogate Eleventh Amendment immunity. Fitzpatrick v. Bitzer,
427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976).
In the pending case, defendant challenges 42 U.S.C.A. § 1981a,
part of the Civil Rights Act of 1991, asking the court to find
that § 1981a does not meet the Seminole Tribe test for valid
abrogation. According to defendant, Fitzpatrick is not
dispositive because the damages that can now be awarded under
Title VII as amended by § 1981a (compensatory damages) were not
under consideration by the Fitzpatrick Court. To the contrary,
defendant argues that nowhere in the Civil Rights Act of 1991 did
Congress articulate an intent to abrogate Eleventh Amendment
immunity in the manner required by Seminole Tribe.
Section 1981a provides in pertinent part:
(a)(1) In an action brought by a complaining
party under . . . 42 U.S.C.A. § 2000e-5
against a respondent who engaged in
unlawful intentional discrimination . . . the
complaining party may recover compensatory
and punitive damages as allowed in
subsection (b) of this section, in addition to
any relief authorized by . . . 42 U.S.C.A.
(b)(l) A complaining party may recover
punitive damages under this section
against a respondent (other than a government,
government agency or political subdivision)
if the complaining party demonstrates
that the respondent engaged in a
discriminatory practice or discriminatory
practices with malice or with reckless indifference
to the federally protected rights
of an aggrieved individual.
Defendant's argument has been considered by another court and
rejected. In Blankenship v. Warren County, 931 F. Supp. 447
(W.D.Va. 1996), the court held that Title VII and § 1981a were
statutes in pari materia and should be construed together. Id. at
450. The reference to "respondent" in § 1981a can only be
logically defined by reference to Title VII, and respondent is
therein defined as an "employer" which includes States and arms
of States. Id. See also, Sattar v. Unocal Corp., 829 F. Supp. 331,
333 n. 3 (N.D.Cal. 1993) (in reaching a decision on another
issue, holding that "respondent" can only be interpreted by
reference to Title VII).
I find this statutory construction eminently reasonable and I
find the logic of defendant to be highly questionable. The
language of § 1981a is a very clear expression of Congress'
desire to subject the States to liability for compensatory
damages for intentional violations of Title VII. There is no
other way to read this section, at least not without making other
parts of § 1981a meaningless. Moreover, the explicit text of
§ 1981a establishes a direct tie to Title VII, a tie which is so
close that § 1981a is virtually meaningless without Title VII. I
conclude that the expression of intent to abrogate found
sufficient by the Fitzpatrick Court is equally sufficient here.
I therefore recommend that the court find that Congress did
clearly intend the Civil Rights Act of 1991 to abrogate State
immunity under the Eleventh Amendment.
Defendants do not argue that the Civil Rights Act of 1991 was
not enacted pursuant to Congress authority under § 5 of the
Fourteenth Amendment. I therefore recommend that the court find
that § 1981a meets both parts of the Seminole Tribe test and
therefore constitutes a valid abrogation of sovereign immunity.
III. FAILURE TO STATE CLAIMS
In this portion of the motion to dismiss, defendant argues that
the complaint consists of conclusory allegations that are not
sufficiently supported by factual allegations. My reading of the
complaint reveals that it contains more than enough to apprise
the defendant of the nature of the claims and the legal theories
behind the claims and to allow the defendant to answer. This is
all that is required under Fed.R.Civ.P. 8 and federal notice
pleading. I, therefore, recommend that this portion of the motion
IV. MOTION TO STRIKE IMPROPER PRAYER FOR DAMAGES
Defendant properly argues that punitive damages are not
recoverable from a governmental entity as a matter of law, and
plaintiff does not dispute this point. I therefore recommend that
the motion be granted as to all prayers for punitive damages and
that those prayers be stricken.
Defendant makes several other arguments about whether certain
damages could appropriately be awarded in this particular case,
damages such as reinstatement. I believe that these arguments are
highly fact intensive and are inappropriate to consider at this
stage of the litigation; rather, discovery should be completed
and these issues reconsidered, if necessary, on dispositive
V. FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
Defendant argues that plaintiff has included in her complaint
several claims that were not included in her EEOC charge and that
"allegations that are not in the Charge of Discrimination may not
be brought in the Complaint." (Doc. # 3, p. 14). Plaintiff
responds that the complaint contains allegations "which evidence
the continuing nature of the discrimination which Plaintiff has
been subjected to [sic]. Any further particulars brought forward
in the complaint merely reemphasize the subject matter of the
EEOC claim." (Doc. # 7 p. 8).
Neither party has provided any legal authority for these
arguments. It is entirely improper under local rule CDIL 7.1(B)
for the parties to submit an argument without supporting
authority. Because the burden of persuasion is on the moving
party, I recommend that the motion be denied to the extent it is
based on a failure to exhaust remedies.
VI. STATUTE OF LIMITATIONS
Defendant argues that the complaint includes or attempts to
bring in matters from more than 300 days prior to the filing of
plaintiff's original charge with the EEOC, thus barring the Title
VII and ADEA claims to the extent they are based on events before
that date. Defendant also states that the two year limitations
period under the EPA bars some of those claims, because each
separate paycheck is a separate violation and some of plaintiff's
claims arose more than two years before the filing of this
Plaintiff does not dispute that her "damages are limited to
events which occurred within 300 days prior to filing the
original charge of discrimination," a statement which responds
not at all to defendant's arguments about the claims (as opposed
to the damages). Plaintiff further asserts that, while the
limitations period under the EPA is two years, it is two years
from the date of the EEOC charge because she included the EPA
claim in that charge.
Once again, neither party submitted legal authority for these
positions in disregard for local rule CDIL 7.1(B), so once again
I recommend that the motion on this issue be denied.
The motion should be allowed in part (punitive damages should
be stricken from all prayers for relief) and denied in all other
regards. The parties are advised that any objection to this
Report and Recommendation must be filed in writing with the Clerk
within ten (10) working days after service of this Report and
Recommendation. Fed. R.Civ.P. 72(b); 28 U.S.C. § 636 (b)(1).
Failure to object will constitute a waiver of objections on
appeal. Video Views Inc. v. Studio 21, Ltd., 797 F.2d 538 (7th
Enter this 22nd day of May, 1997.
KAUFFMAN, United States Magistrate Judge.