Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 00 C 4757--Rebecca R. Pallmeyer, Judge.
Before Ripple, Kanne and Evans, Circuit Judges.
The opinion of the court was delivered by: Ripple, Circuit Judge.
Navreet Nanda, Ph.D., brought this discrimination action against her former employer, the Board of Trustees of the University of Illinois, as well as her former supervisors and colleagues at the University (collectively "the University"). The University moved to dismiss Dr. Nanda's complaint, principally on the basis that Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), did not validly abrogate the State's sovereign immunity under the Eleventh Amendment. The district court rejected this argument and held that Congress validly abrogated Eleventh Amendment immunity when it extended Title VII to the States. For the reasons set forth in the following opinion, we affirm the judgment of the district court.
Dr. Nanda was employed as an assistant professor in the Department of Microbiology at the University's Chicago campus. In July 1998, Bellur Prabhakar, the Chairman of the Department of Microbiology and Immunology, recommended to the University that Dr. Nanda be issued a terminal contract that would end, at its expiration, her employment with the University. The University accepted Dr. Prabhakar's recommendation and issued Dr. Nanda a terminal contract ending on August 31, 1999. Dr. Nanda's efforts to reverse the decision through the University's grievance process were unsuccessful. After exhausting her administrative remedies, Dr. Nanda filed this action in district court.
Dr. Nanda's complaint included three counts. In Count I, Dr. Nanda alleged that she had suffered harassment and that her employment had been terminated on the basis of her sex, race and national origin in violation of Title VII. Count II of Dr. Nanda's complaint set forth a parallel claim under 42 U.S.C. §§ 1983 and 1988 for violations of her equal protection rights and sought injunctive relief, compensatory damages and punitive damages against the University as an institution and also her supervisors for violations of her equal protection rights. Finally, Count III, a state tort law claim, alleged that Dr. Prabhakar had interfered intentionally with Dr. Nanda's employment relationship with the University.
The University timely moved to dismiss Dr. Nanda's complaint. With respect to Count I, the University maintained that Congress did not abrogate properly the States' sovereign immunity under the Eleventh Amendment when it enacted the Equal Employment Act of 1972 (the "1972 Act") which extended Title VII's coverage to the States. The individual defendants and the University moved to dismiss Count II on the ground that the named administrators were not "persons" within the meaning of 42 U.S.C. § 1983. Finally, Dr. Prabhakar moved to dismiss Count III on the ground that the pleaded state cause of action was preempted by a state statutory cause of action.
In her response, Dr. Nanda submitted that Congress had the authority to extend Title VII to the States pursuant to § 5 of the Fourteenth Amendment. Specifically, Dr. Nanda claimed that Title VII passed the "congruence and proportionality" test articulated in City of Boerne v. Flores, 521 U.S. 507 (1997), and its progeny. According to Dr. Nanda, "Title VII does not raise the level of scrutiny given to race, national origin and gender classifications beyond that granted in the Equal Protection Clause and, therefore, Title VII is congruent with the Equal Protection Clause." R.58 at 5. Furthermore, Dr. Nanda pointed to the historical problems of race and gender discrimination, and to specific evidence of discrimination against women in institutions of higher education, to establish that Congress' response to the problem of gender discrimination was proportionate. See id. at 6-8.
With respect to Count II, Dr. Nanda contended that Count II of her complaint stated a claim under § 1983 because it alleged deliberate conduct for which she sought punitive damages and because she sought injunctive relief which "may be granted under § 1983 without violating the Eleventh Amendment." Id. at 10. Finally, Dr. Nanda maintained that her allegations against Dr. Prabhakar in Count III were distinguishable from her allegations of civil rights violations made in the first two counts, and, therefore, that count should be considered independent of those violations under Illinois tort law.
B. District Court Opinion
After considering the arguments of the parties, the district court granted in part and denied in part the University's motion. The district court acknowledged that, in several recent cases, the Supreme Court had held that Congress had encroached on the States' Eleventh Amendment immunity. However, with respect to whether Congress had abrogated properly the States' Eleventh Amendment immunity in enacting the 1972 Act, the court determined that it was not "writ[ing] on a clean slate." R.79 at 3.
The district court began its analysis by stating that "[i]n Fitzpatrick v. Bitzer, 427 U.S. 445, 447 (1976), the Supreme Court concluded that in the 1972 Amendment to Title VII of the Civil Rights Act of 1964, 'Congress, acting under § 5 of the Fourteenth Amendment, authorized federal courts to award money damages . . . against a state government . . . .' " R.79 at 3. Since that time, the court continued, numerous courts of appeals had permitted Title VII claims for damages against the States. The district court specifically mentioned and followed the decision of the Eighth Circuit in Okruhlik v. University of Arkansas ex rel. May, 255 F.3d 615 (8th Cir. 2001). In that case, the Eighth Circuit concluded that Congress validly had abrogated the States' Eleventh Amendment immunity when it extended Title VII to the States. The district court, "persuaded by Okruhlik and the authorities cited therein, conclude[d] that it may, consistent with the Constitution, exercise jurisdiction over Professor Nanda's Title VII claims." R.79 at 6. It therefore denied the University's motion to dismiss Count I.
With respect to Count II, the district court held that, by virtue of the Supreme Court's decision in Will v. Michigan Department of State Police, 491 U.S. 58, 71 (1989), "a lawsuit under § 1983 against state officials constitutes a suit against the State itself, and that neither a State nor its officials acting in their official capacities are 'persons' under § 1983 for purposes of damage awards." R.79 at 7. Consequently, the district court dismissed Dr. Nanda's claims for damages. However, because "the Court acknowledged in Will that a claim for injunctive relief may properly be brought against state officials," the district court allowed Dr. Nanda's claim for injunctive relief to go forward. Id.
Finally, the district court determined that Dr. Nanda's claim for intentional interference with contract contained in Count III was linked inextricably with the allegations that Dr. Prabhakar's actions were motived by sex, race and national origin. Therefore, the Illinois Human Rights Act provided the exclusive remedy for the alleged conduct and preempted Dr. Nanda's state tort claim. The court therefore granted Dr. Prabhakar's motion to dismiss Count III.
The University timely appealed the district court's denial of its motion to dismiss Counts I and II. *fn1
A. Eleventh Amendment Immunity
Under 28 U.S.C. § 1291, this court has jurisdiction only from "final decisions" of the district courts. See 28 U.S.C. § 1291; Cherry v. Univ. of Wis. Sys. Bd. of Regents, 265 F.3d 541, 546 (7th Cir. 2001). This court has held that a district court's denial of a motion to dismiss is not a final decision. See United States v. Michelle's Lounge, 39 F.3d 684, 702 (7th Cir. 1994) ("Ordinarily, of course, a denial of a motion to dismiss is not a final order."). However, the collateral order doctrine provides a "narrow" exception to the finality rule. This doctrine permits an appeal from a non-final judgment, such as the denial of a motion to dismiss, when the following criteria are met: (1) the order "conclusively determine[s] a disputed question"; (2) the order "resolve[s] an important issue completely separate from the merits of the action"; and (3) the order is "effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978). It is well-settled that the issue of Eleventh Amendment immunity, which encompasses both immunity from liability as well as immunity from suit, is "irretrievably lost" if not immediately appealable and therefore is properly raised in a collateral appeal. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993) ("We hold that States and state entities that claim to be 'arms of the State' may take advantage of the collateral order doctrine to appeal a district court order denying a claim of Eleventh Amendment immunity."). Thus, we have jurisdiction to review the district court's denial of Eleventh Amendment immunity.
We review a district court's decision to dismiss a claim on Eleventh Amendment immunity grounds de novo. See Cherry, 265 F.3d at 547. The University urges us to reverse the district court's decision on the Eleventh Amendment issue and reiterates many of the arguments that it made in support of its motion to dismiss. Specifically, the University contends that, when the Supreme Court handed down its most recent Eleventh Amendment case, Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), the Court established a higher bar for congressional abrogation of the States' Eleventh Amendment immunity. In the University's view, in order to abrogate properly Eleventh Amendment immunity, a Congressional enactment must not only pass the "congruence and proportionality" test, but also must be supported by clear evidence of past constitutional violations set forth in the legislative record. The district court, continues the University, paid only lip service to this second requirement. The University contends that, because the legislative record does not reveal a pattern of past constitutional wrongs to support the extension of Title VII to the States, Title VII cannot survive an Eleventh Amendment challenge.
Dr. Nanda, and the United States as intervenor, argue the opposite. According to these parties, federal courts only have to look for a legislative record of constitutional violations if the congressional action fails the "congruence and proportionality" test. In their view, because Title VII proscribes only unconstitutional behavior, the district court did not have to examine the legislative record for a history of constitutional violations. In the alternative, Dr. Nanda and the United States maintain that, if courts have to examine the legislative record to assess the need for congressional action, there is ample evidence in the record to justify the extension of Title VII to the States. *fn2
The Eleventh Amendment states: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. *fn3 A state's immunity, however, is not absolute; "Congress may abrogate the State's Eleventh Amendment immunity when it both unequivocally intends to do so and acts pursuant to a valid grant of constitutional authority." Garrett, 531 U.S. at 363 (internal quotation marks and citations omitted). *fn4 The Supreme Court has recognized that "the Eleventh Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment." Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976) (internal citations omitted). Congress, therefore, "may subject non-consenting States to suit in federal court when it does so pursuant to a valid exercise of its § 5 power." Garrett, 531 U.S. at 364. We must ascertain, therefore, what constitutes a valid exercise of § 5 power to determine if Congress' extension of Title VII to the States falls within that grant of authority.
The Fourteenth Amendment states, in relevant part:
Section 1. . . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to ...