Appeal from the United States District Court for the Western District of Wisconsin. No. 00-C-564-S--John C. Shabaz, Judge.
Before Rovner, Diane P. Wood, and Evans, Circuit Judges.
The opinion of the court was delivered by: Evans, Circuit Judge
This is a public enforcement action brought by the United States Equal Employment Opportunity Commission (EEOC) under section 7 of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. sec. 626. The EEOC alleged that the Board of Regents of the University of Wisconsin System (UW) violated the ADEA when it terminated the employment, on the basis of age, of four persons working for the University of Wisconsin Press. The EEOC prevailed in a jury trial, bifurcated between liability and damages. Following the jury determination that there was a willful violation of the Age Discrimination Act, the UW moved for judgment as a matter of law, as it did following the trial on damages. Those motions and a motion for a new trial were denied. The UW appeals those rulings as well as an award of costs to the EEOC. In addition, the UW contends that it enjoys Eleventh Amendment sovereign immunity which should have barred this suit from even going to trial.
The University of Wisconsin Press is a nonprofit organization associated with the UW Graduate School and under the direction of the UW Board of Regents. It publishes scholarly books, journals, and periodicals, primarily in the humanities and the social sciences. The EEOC's case is based on claims by four "charging" parties: Rosalie Robertson, who was 50 years old at the relevant time; Mary Braun, who was 46; Joan Strasbaugh, age 47; and Charles Evenson, who was 54. The university personnel who made the termination decisions were David Bethea, the interim director of the Press, and Steve Salemson, the associate director. Finding evidence of "ageism" in the terminations, the EEOC filed this action. We will save until later our discussion of what that evidence was and move first to the issue of sovereign immunity.
If this case was to be prosecuted in federal court, the EEOC had to do it. The individual charging parties were barred by the Eleventh Amendment from suing the state (and therefore the Board of Regents of the state university system). The Supreme Court determined in Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000), that the ADEA did not abrogate states' sovereign immunity to suits brought by individuals.
It is, however, a well-established principle that the fact that the states retain sovereign immunity from private lawsuits does not mean that they are protected from suit by the federal government. As the Court explained in Alden v. Maine, 527 U.S. 706, 755 (1999), "[i]n ratifying the Constitution, the States consented to suits brought by other States or by the Federal Government." The Court said that a suit brought against a state in the name of the United States "differs in kind from the suit of an individual." Id. See also Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996). In extending the Kimel principle to the Americans with Disabili ties Act (ADA), the Court stated that even though private suits were barred, the standards of the ADA can nevertheless be enforced "by the United States in actions for money damages . . . ." Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 374 n.9 (2001).
These cases have not ended the debate. The question arguably left open is whether all types of suits brought by the federal government may proceed against a state or whether the nature of the suit determines whether the state enjoys Eleventh Amendment sovereign immunity. The UW points out that the case before us is one in which the Commission is merely seeking redress of individual acts of discrimination; the Commission is simply standing in the shoes of the individuals and is acting in privity with them as their representative. In other words, it is just a private suit dressed in fancy clothes. Therefore, the argument is, even though the EEOC would have the power to sue the states to remedy a pattern of intentional discrimination, the state retains immunity from this suit. If the individuals cannot sue, the EEOC should not be able to either.
Whatever wind might originally have been in the sails of this argument has been knocked out by EEOC v. Waffle House, Inc., 122 S. Ct. 754, decided earlier this year. In Waffle House, the EEOC brought an enforcement action under the ADA on behalf of a former Waffle House employee who signed a binding arbitration agreement. The issue presented for decision was "whether an agreement between an employer and an employee to arbitrate employment-related disputes bars the Equal Employment Opportunity Commission (EEOC) from pursuing victim-specific judicial relief . . . ." At 758. The Court of Appeals for the Fourth Circuit had distinguished between injunctive and victim-specific relief and determined that only when the EEOC seeks broad injunctive relief would the public interest overcome the goals of the Federal Arbitration Act. Rejecting this conclusion, the Supreme Court pointed out that once an EEOC charge is filed, the EEOC is in "command of the process" and has "exclusive jurisdiction over the claim for 180 days." If the EEOC chooses to file suit on its own, the employee retains no independent cause of action, although he may intervene in the EEOC's suit. The EEOC is, in other words, the "master of its own case" and the statute "confers on the agency the authority to evaluate the strength of the public interest at stake." It is the EEOC's job to determine whether public resources should be used to recover victim-specific relief. The Court concluded:
[W]e are persuaded that, pursuant to Title VII and the ADA, whenever the EEOC chooses from among the many charges filed each year to bring an enforcement action in a particular case, the agency may be seeking to vindicate a public interest, not simply provide make-whole relief for the employee, even when it pursues entirely victim-specific relief. At 765.
The only response left to the UW would be to say that sovereign immunity is different; it is more important than the FAA or arbitration agreements. That may be so. But when we read Waffle House together with the cautionary language of Garrett, which indicates that despite the fact that sovereign immunity bars private suits, the federal employment statutes can be enforced by the United States, we find little room in which to maneuver--even were we inclined to. If ultimately Waffle House is to be distinguished from a case such as this one, that distinction should be drawn not by us, but rather by the Supreme Court. See Agostini v. Felton, 521 U.S. 203 (1997).
We will note, though, that granting the states immunity from suits by individuals but allowing suits by the EEOC is both a benefit and a curse for the states. It is a benefit because the EEOC brings only a few cases out of the thousands of charges filed, so the number of cases to defend against is vastly reduced. It is a curse because when the EEOC decides to bring a case, rather than facing an individual plaintiff, who almost certainly has limited resources, the state must square off against the power and majesty of the federal government. But whatever the policy arguments on either side of the issue, Waffle House compels us to find that sovereign immunity does not bar this suit, which is brought independently by an agency of the United States government.
Finding that the suit was properly before the court, we proceed to the merits and the appeal from the denial of the motions for judgment as a matter of law and for a new trial. In considering a motion for judgment as a matter of law, a court must review all the evidence in the record; it must "draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). Although the court should review the entire record, "it must disregard all evidence favorable to the moving party that the jury is not required to believe." Id. at 151. Furthermore, as a reviewing court, we must not substitute our view of the evidence for that of the jury. Massey v. Blue Cross-Blue Shield of Ill., 226 F.3d 922 (7th Cir. 2000).
In an age discrimination case, we evaluate whether there is evidence that the employer discriminated against the employees "because of" age. 29 U.S.C. sec. 623(a)(1). Reeves. Our task, then, is to examine the record to see whether there was evidence from which a reasonable jury could ...