The opinion of the court was delivered by: McDADE, District Judge.
Before the Court are Defendant's Objections [Doc. # 19] to the
Report and Recommendation of the Magistrate Judge [Doc. # 18]
denying in part and granting in part Defendant's Motion to
Dismiss [Doc. # 2].
In short, Plaintiff Karen Gehrt filed a four count Complaint
against Defendant University of Illinois at Urbana-Champaign
(Cooperative Extension Service alleging: (I) sexual harassment
under Title VII; (II) violations of the Equal Pay Act; (III) age
discrimination under the ADEA; and (IV) retaliation under Title
VII. Defendant filed a motion to dismiss all counts of the
Complaint on the following bases: (1) all counts were barred by
the Eleventh Amendment; (2) the Complaint lacked a sufficient
factual basis; (3) the Complaint requested relief which could not
be awarded;(4) Plaintiff failed to exhaust her administrative
remedies; and (5) the limitations period had expired on some of
the claims presented. Because one of the asserted bases for
dismissal was Defendant's Eleventh Amendment immunity, the United
States Government intervened in the lawsuit to brief that issue.
Eleventh Amendment Immunity
The Court agrees with the Magistrate Judge's well-reasoned and
well-researched decision that none of Plaintiff's claims are
barred by the Eleventh Amendment.*fn1 Both precedent and reason
dictate such a result. Initially, the Court rejects Defendant's
interpretation of the two elements for Congressional abrogation
of sovereign immunity set forth in Seminole Tribe of Florida v.
Florida, 517 U.S. 609, 116 S.Ct. 1114, 1123, 134 L.Ed.2d 252
(1996). Under that decision, the Court need ask only two
questions: (1) whether Congress has unequivocally expressed its
intent to abrogate the immunity, and (2) whether Congress has
acted pursuant to a valid exercise of power. Id.
Defendant argues that the second element requires Congress to
have expressly passed the legislation pursuant to the Fourteenth
Amendment. Defendant draws support for this argument from a
portion of Seminole Tribe which states: "[O]ur inquiry into
whether Congress has the power to abrogate unilaterally the
States' immunity from suit is narrowly focused on one question:
Was the Act in question passed pursuant to a constitutional
provision granting Congress the power to abrogate?" (emphasis
added). However, nothing in this isolated passage dictates such a
result. The term "passed" may simply denote the actual passage of
the legislation, not the intent of Congress to abrogate Eleventh
Amendment immunity through a particular constitutional provision.
There is ample precedent to support the Court's understanding
of this second element. "The question of the constitutionality of
actions taken by Congress does not depend on recitals of the
power which it undertakes to exercise." Woods v. Cloyd W. Miller,
Co., 333 U.S. 138, 144, 68 S.Ct. 421, 424, 92 L.Ed. 596 (1948).
The Court need only discern some legislative purpose or factual
predicate to support the exercise of the "appropriate
legislation" clause of the Fourteenth Amendment. EEOC v. Wyoming,
460 U.S. 226, 243 n. 18, 103 S.Ct. 1054, 1064 n. 18, 75 L.Ed.2d
18 (1983). This does not mean that Congress need actually recite
the words "section 5" or "Fourteenth Amendment" or "equal
protection." Id. In absence of an explicit statement by Congress
negating its power under the Fourteenth Amendment, the crucial
inquiry is whether the objectives of the Act were within the
scope of the Fourteenth Amendment. Mills v. State of Maine,
118 F.3d 37, 43-44 (1st Cir. 1997); EEOC v. Elrod, 674 F.2d 601, 608
(7th Cir. 1982). See, e.g., Fullilove v. Klutznick, 448 U.S. 448,
476-78, 100 S.Ct. 2758, 2773-75, 65 L.Ed.2d 902 (1980) (upholding
legislation under the Fourteenth Amendment even though statute
and legislative history did not refer to it); Fitzpatrick v.
Bitzer, 427 U.S. 445, 453 n. 9, 96 S.Ct. 2666, 2670 n. 9, 49
L.Ed.2d 614 (1976) (relying upon legislative history to
reconstruct probable intent of Congress in relying on Fourteenth
Indeed, Defendant's interpretation confuses the first and
second prongs of the Seminole Tribe test by incorporating the
intent element of the first factor into the "appropriate
legislation" requirement of the second. However, the first factor
has never required Congress to specifically designate which
provision of the Constitution it is using to abrogate the State's
sovereign immunity; it must only express "its intent to abrogate"
in the Act itself. Seminole Tribe, 517 U.S. at ___, 116 S.Ct. at
1123. Thus, even in Seminole Tribe, the Court found a clear
legislative intent to abrogate the States' immunity under the
Indian Gaming Regulatory Act simply because Congress had made
"numerous references to the `State'" in the text of the statute.
Id. at ___ _ ___, 116 S.Ct. at 1123-24.
That being said, the Court must now address Congress'
abrogation of each of the statutes at issue in this case under
the two-part test set forth in Seminole Tribe: the Age
Discrimination in Employment Act
(ADEA), the Equal Pay Act (EPA), and the Civil Rights Act of
1991. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
121, 104 S.Ct. 900, 919, 79 L.Ed.2d 67 (1984); Henry v.
Metropolitan Sewer Dist., 922 F.2d 332, 337 (6th Cir. 1990).
Age Discrimination in Employment Act
Ample precedent from both the Seventh Circuit and other circuit
courts of appeals dictate, that both prongs of the Seminole Tribe
test for abrogation have been met with respect to the ADEA.*fn2
See Davidson v. Board of Governors of State Colleges and Univs.
for Western Ill. Univ., 920 F.2d 441, 443 (7th Cir. 1990); Heiar
v. Crawford County, 746 F.2d 1190, 1193-94 (7th Cir. 1984); EEOC
v. County of Calumet, 686 F.2d 1249, 1251-53 (7th Cir. 1982);
Elrod, 674 F.2d at 604-09; see also Hurd v. Pittsburg State
Univ., 109 F.3d 1540, 1543-46 (10th Cir. 1997); Ramirez v. Puerto
Rico Fire Serv., 715 F.2d 694, 698-701 (1st Cir. 1983). Most
recently, Chief Judge Posner in Crawford v. Indiana Dept. of
Corrections, 115 F.3d 481, 487 (7th Cir. 1997), reinforced the
continuing vitality of these cases after Seminole Tribe in
finding that the Americans with Disabilities Act sufficiently
abrogated sovereign immunity under the Fourteenth Amendment. If
Defendant wishes to challenge these rulings, it must do so before
the Seventh Circuit directly.
The Court does wish to address two specific arguments raised by
Defendant. Defendant first argues that because the ADEA
amendments of 1974 were passed pursuant to the Commerce Clause,
they cannot now be presumed to have been passed pursuant to the
Fourteenth Amendment. This is wrong for at least three reasons.
First, there was no explicit reference by Congress to a specific
constitutional provision as authority to extend coverage of the
ADEA to the States. Elrod; 674 F.2d at 605. Neither of the cases
cited by Defendant held that the ADEA amendments of 1974 actually
were passed pursuant to the Commerce Clause, only that Congress
could have done so as a valid exercise of its legislative power.
See Gregory v. Ashcroft 501 U.S. 452, 467-68, 111 S.Ct. 2395,
2404-05, 115 L.Ed.2d 410 (1991); Wyoming, 460 U.S. at 243, 103
S.Ct. at 1064.
Second, as discussed above, there is no requirement under
Seminole Tribe that Congress attribute its intent to abrogate to
any specific provision of the Constitution. It is Congress' power
to pass "appropriate legislation" under the Fourteenth Amendment
that matters. Wyoming, 460 U.S. at 243 n. 18, 103 S.Ct. at 1063
n. 18; Woods, 333 U.S. at 144, 68 S.Ct. at 424. Thus, Defendant's
discussion of the first element requiring a "simple but stringent
tests" for Congress' intent to abrogate, Seminole Tribe, 517 U.S
at ___, 116 S.Ct. at 1123, is irrelevant to the discussion
whether Congress had the power to abrogate sovereign immunity
pursuant to the Fourteenth Amendment. Id. at ___, 116 S.Ct at
Third, nothing prohibits Congress from passing legislation
pursuant to the power given it in more than one provision of the
Constitution: see, e.g., Wyoming, 460 U.S. at 243, 103 S.Ct. at
1064 (refusing to decide whether the ADEA, could be upheld under
the Fourteenth Amendment as well as the Commerce Clause);
Crawford; 115 F.3d at 487 ("the Americans with Disabilities Act
is an exercise of Congress's power under section 5 of the
Fourteenth Amendment (as well as under the commerce clause))";
Elrod; 674 F.2d at 603 n. 1 (finding that the ADEA would be a
constitutional exercise of, Congress' Commerce Clause powers as
well as under the Fourteenth Amendment).
Defendant's second argument is that Congress cannot protect
certain classes of persons by enacting legislation pursuant to
the Equal Protection Clause if the Supreme Court has not already
created a suspect class subject to heightened scrutiny (i.e. race
or gender). Defendant relies upon Wilson — Jones v.
Caviness, 99 F.3d 203, 210 (6th Cir. 1996), in which the Sixth
Circuit held that the Fair Labor Standards Act (FLSA) could not
have been passed pursuant to the Fourteenth Amendment as it was
aimed to remedy "a mundane `discrimination' between private- and
public-sector workers" which did
not touch "central, obvious Fourteenth Amendment concerns." The
We think it best to "regard as an enactment to enforce" the
Equal Protection Clause, in the absence of explicit comment
by Congress, only efforts to remedy discrimination against
a class of persons that Fourteenth Amendment jurisprudence has
already identified as deserving special protection.
Id. The court noted, however, that its "opinion might be
different if Congress made findings that a particular group
needed legal protection to remedy some sort of invidious
discrimination not directly addressed by federal precedent." Id.
at 210 n. 4.
Defendant asserts that because the Supreme Court has always
subjected age to rational basis rather than heightened scrutiny
review, Gregory, 501 U.S. at 470, 111 S.Ct. at 2406;
Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313-14,
96 S.Ct. 2562, 2566-67, 49 L.Ed.2d 520 (1976), it too should be
subject to the rationale of Wilson — Jones that Congress
cannot legislate about that class of persons pursuant to the
Equal Protection Clause. However, Defendant ignores the caveat
set forth by the Wilson — Jones court that Congressional
findings as to the need for protection of a group subject to
invidious discrimination would be enough to invoke Congress'
power under the Fourteenth Amendment. 99 F.3d at 210 n. 4. That
is precisely the case we have here.
In passing the 1974 amendments to the ADEA, both the House and
Senate committees expressly found that "[d]iscrimination based on
age . . . can be as great an evil in our society as
discrimination based on race or religion . . . Especially in the
employment field, discrimination based on age is cruel and
self-defeating; it destroys the spirit of those who want to work and
it denies the National [sic] the contribution they could make if
they were working." Elrod; 674 F.2d at 605 citing S.Rep. No. 93
— 690, 93d Cong., 2d Sess. 55 (1974); H.R.Rep. No. 93
— 913, 93d Cong., 2d Sess., reprinted in (1974) U.S. Code
Cong. & Ad. News 2811, 2849. Because of these specific findings,
Congress could validly pass its age discrimination legislation
pursuant to the Equal Protection Clause even under the rationale
of Wilson — Jones.
Defendant also believes that its theory of heightened scrutiny
review is supported by the Supreme Court's decision in Oregon v.
Mitchell 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970), as
discussed in a recent law review article by Professor Ronald D.
Rotunda of the University of Illinois College of Law. In Oregon,
the Court considered challenges to various provisions of the
Voting Rights Act Amendments of 1970 which lowered the minimum
voting age in state and local elections from 21 years of age to
18 under the rationale of age discrimination under the Equal
Protection Clause. Professor Rotunda asserts that a majority of
the Justices in Oregon — Harlan, Black, Stewart, Burger and
Blackmun — arrived at the same conclusion that Congress
could not independently define the reach of the Equal Protection
Clause by creating new suspect classes subject to legislative
While, the Court finds Professor Rotunda's argument
interesting, it must ultimately disagree that this was the import
of Oregon. It is true that the five justices listed above agreed
that the Equal Protection Clause could not justify Congress'
lowering of the voting age from 21 to 18. However, as the
Government points out, Justices Black and Harlan relied upon
considerations relevant to voter qualifications in particular
when they found that Congress did not have the authority to lower
the voting age. Id. at 130, 200-09, 91 S.Ct. at 267-68, 302-08.
Thus, those two opinions cannot be used to justify a broad
prohibition on Congress' power to enact legislation pursuant to
the Equal Protection Clause of the Fourteenth Amendment.
Indeed, as Professor Rotunda laments, the lower federal courts
after Oregon have paid no heed to this aspect of the opinion.
Certainly, the Seventh Circuit has not felt constrained by this
fragmented decision and in County of Calumet; indicated its
rejection of such an idea:
A construction of s 5 that would require a judicial determination
that the enforcement of the state law precluded by Congress
violated the [Fourteenth] Amendment, as a condition of sustaining
the congressional enactment, would depreciate both congressional
resourcefulness and congressional responsibility for implementing
the Amendment. It would confine the legislative power in this context
to the insignificant role of abrogating only those state laws that
the judicial branch was prepared to adjudge unconstitutional, or of
merely informing the judgment of the judiciary by particularizing
the "majestic generalities" of s 1 of the Amendment.
Under [Katzenbach v.] Morgan,
[384 U.S. 641, 651, 86 S.Ct. 1717, 1723-24, 16
L.Ed.2d 828 (1966)], the proper question
is whether the ADEA as applied to state
and local government is "appropriate" legislation
under section 5 to enforce the
Equal Protection Clause. Legislation is
appropriate if it is "plainly adapted" to
enforce the Fourteenth Amendment and is
"not prohibited by but is consistent with
the `letter and spirit of the constitution.'"
The appellants do not seriously challenge
the ability of the ADEA to satisfy this test.
This court recently held in Elrod that the
law is plainly sufficient. Congress is given
great deference in selecting the measures
necessary, and appropriate to secure the
guarantees of the Fourteenth Amendment.
686 F.2d at 1252 (internal citations omitted). Thus, at least to
this Court, the issue has become quite academic.
The Court finds that the Magistrate Judge has adequately set
forth the reasons why both prongs of the Seminole Tribe
abrogation test have been met with respect to the EPA. This view
has recently been confirmed by the Sixth Circuit in Timmer v.
Michigan Dept. of Commerce, 104 F.3d 833 (6th Cir. 1997). the
only court of appeals to have reached the issue after Seminole
Once again, Defendant challenges this ruling on the basis that
the EPA was enacted pursuant to the Commerce Clause, not the
Fourteenth Amendment. As discussed above, this argument must fail
because the second element of Seminole Tribe focuses on Congress'
power to enact the legislation pursuant to the Fourteenth
Amendment, not its intent to do so. Wyoming, 460 U.S. at 243 n.
18, 103 S.Ct. at 1064 n. 18; Woods, 333 U.S. at 144, 68 S.Ct. at
424. Moreover, even if it is true that the EPA was passed
pursuant to Congress' commerce clause powers, Marshall v. City of
Sheboygan, 577 F.2d 1, 2 (7th Cir. 1978), this does not prevent
Congress from having acted under the Fourteenth Amendment also.
Wyoming, 460 U.S. at 243, 103 S.Ct. at 1064; Crawford; 115 F.3d
at 487. The Seventh Circuit in Marshall even noted that two other
courts of appeals had upheld the legislation as a valid exercise
of power pursuant to the Fourteenth Amendment but saw no need to
reach that question. 577 F.2d at 6 n. 19. Indeed, the EPA and
1974 Amendments to the ADEA have very much in common regarding
the manner in which they were enacted. It follows that the
Seventh Circuit would treat the two statutes consistently as
exhibiting Congress' intent and power to abrogate sovereign
immunity under the Fourteenth Amendment.
At issue here is the Civil Rights Act of 1991 which, among
other things, expanded the remedies of Title VII to include
compensatory damages "against a respondent who engaged in
unlawful intentional discrimination" under Title VII. Defendant
contends that this statute meets neither of the two prongs set
out in Seminole Tribe. First, he asserts that the statute does
not contain a clear intent to abrogate sovereign immunity.
However, as pointed out by the district court in Blankenship v.
Warren County, Va., 931 F. Supp. 447, 450 (W.D.Va. 1996), section
1981a must be read in conjunction with Title VII itself in order
to have any real meaning. While technically a separate statutory
provision, the preamble to section 1981a makes clear that it was
intended to amend Title VII. Id. The only reasonable way in which
to define the term "respondent" in section 1981a is to turn to
Title VII which defines respondent as including State employers.
Id. Thus, the two statutes must be read in pari materia and the
requisite intent to abrogate is present.
Defendant also challenges section 1981a as not being
"appropriate legislation" under the Fourteenth Amendment because
it imposes a direct financial burden on state coffers, rather
than simply proscribing conduct. However, this is precisely what
the 1972 Amendments to Title VII accomplished, and the Supreme
Court in Fitzpatrick upheld them as an appropriate means of
enforcing the substantive guarantees of the Fourteenth Amendment.
427 U.S. at 448, 96 S.Ct. at 2667-68. There is simply no basis to
distinguish between the equitable monetary damages at issue in
Fitzpatrick and the compensatory damages at issue here; both
serve the common purpose of punishing and deterring States from
violating the equal protection guarantee of the United States
Seminole Tribe itself makes clear that the relief sought by a
plaintiff suing a State is irrelevant to the question whether
Congress has the power to abrogate States' immunity under the
Eleventh Amendment. ___ U.S. at ___, 116 S.Ct. at 1124. Thus,
Defendant's citation to Green v. Mansour, 474 U.S. 64, 106 S.Ct.
423, 88 L.Ed.2d 371 (1985), and Hess v. Port Auth., 513 U.S. 30,
115 S.Ct. 394, 130 L.Ed.2d 245 (1994), is inapposite. Those cases
are also distinguishable. Green involved the propriety of
retrospective monetary relief in actions against individual state
officials, 474 U.S. at 68, 106 S.Ct. at 425-26 citing Ex parte
Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), but not
in actions against the State itself, as is the case here.
Likewise, Hess involved the question whether the Defendant
corporation could be considered a "State" agency at all for
purposes of Eleventh Amendment immunity 513 U.S. at 52, 115 S.Ct.
at 406. Here, there is no question that the University of
Illinois is a State actor subject to the Eleventh Amendment.
Thus, the question of abrogation was never broached in those
In sum, the Court adopts the Magistrate Judge's recommendation
that Congress abrogated States' sovereign immunity under each of
the statutes at issue here. Therefore, Plaintiff suit may proceed
on all Counts.
Exhaustion and Timeliness of Administrative Remedies*fn3
Aside from the limitations issue, there is another restriction
imposed upon a plaintiff in federal court: generally, she may
bring only those claims that were included in her EEOC charge.
Harper v. Godfrey Co., 45 F.3d 143, 147-48 (7th Cir. 1995); Cheek
v. Western & Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir.
1994) Although this rule is not jurisdictional, it is a condition
precedent with which Title VII plaintiffs must comply. Cheek, 31
F.3d at 500.
The Seventh Circuit allows a plaintiff to raise in her
complaint all grounds that are: (1) "like or reasonably related"
to those brought in the original administrative charge, and (2)
can be reasonably expected to grow out of an administrative
investigation of those charges. Harper, 45 F.3d at 148; Cheek, 31
F.3d at 500; Jenkins v. Blue Cross Mut. Hosp. Ins., Inc.,
538 F.2d 164, 167 (7th Cir. 1976) (en banc). The first prong requires
that there be a factual relationship between the claims; they
must, at a minimum, describe the same conduct and implicate the
same individuals. Harper, 45 F.3d at 148; Cheek, 31 F.3d at 501.
Moreover, the discriminatory conduct must be described with some
degree of specificity in the charge. Cheek, 31 F.3d at 502. The
second part of the test necessarily requires some amount of
speculation as to what the EEOC might or might not discover in
the course of an investigation. Id. at 500.
Here, Plaintiff filed her original charge on December 2, 1994,
checking the boxes for discrimination based on race, sex, age and
retaliation. Plaintiff described the discrimination as commencing
on December 1, 1992, and continuing through the present date.
Plaintiff asserted that she had been discriminated against under
Title VII, the ADEA and the EPA on the following three bases:
"(1) The Respondent allowed a male co-worker to continually
harass me; (2) The Respondent pays a male co-worker more than me;
and (3) I was removed from my job and replaced by a young, Black
More specifically, Plaintiff alleged as follows:
I began working for the Respondent in
1973 and currently work as a Nutrition
Educator. Since November, 1991 until
July, 1994 a male co-worker continually
harassed me.*fn4 I was also paid less money
than he. In July, 1994 I was removed
from the position of EFNEP Educator and
in August, 1994 I was informed I would be
issued a terminal contract with the Respondent
unless I can find other employment,
On several occasions and most recently
on April 5, 1994 I have complained
to the Respondent about the discrimination
and harassment I have received.
The Respondent has taken no action
against the co-worker who harassed me.
The Respondent stated he made more than
me because he has moved his family three
or four times. The Respondent removed
me from the position of EFNEP Educator
because of financial and management problems.
The Respondent stated I would be
given a terminal contract because I currently
hold an interim position.
On May 15, 1995, Plaintiff amended her charge to include the
following sentence at the end of the first paragraph: "On March
27, 1995, I was advised of my termination because my 95-96
contract had not been renewed."
In 1992, ICES hired Dennis Thompson ("Thompson") to be the Unit
Leader of the Champaign County unit responsible for giving
leadership to the local education mission.*fn5 Thompson was
given this position despite his previous interpersonal problems
and discriminatory conduct toward a female co-worker. According
to Gehrt, ICES hired Thompson 4in a conspiracy to sabotage the
EFNEP program and her employment with ICES. Thompson immediately
began a pattern of "harassment, intimidation and defamation"
against Gehrt. He filed numerous false charges against Gehrt with
their supervisor, Regional Director Bea Bagby ("Bagby"). Gehrt
confronted Thomas, Bagby, Bill McNamara (Assistant to the
Director of ICES), and her "various supervisors" in an attempt to
put an end to Thomas' conduct. As a result, both Gehrt and Thomas
were removed from their positions. Thus, in July 1994, Gehrt was
removed from the EFNEP program and in September 1994, was made
the Extension Educator for the Nutrition and Wellness program.
After serving in that position for less than 24 months, her
employment with ICES was terminated.
In her sex discrimination claim in Count I, Plaintiff asserts
the following specific instances of Defendant's discriminatory
conduct toward her:
(a) Beginning in 1992, her male supervisor
gave her below average performance
reviews and pay increases so that she
was earning only 80% of the average
male's pay in the same position;
(b) At the time Thompson was hired, he
was paid nearly 50% more than Gehrt;
(c) When Thompson and Gehrt were
transferred from their positions, Gehrt
was placed into a short term job which
would end in her unemployment, but
Thompson was ...