Migneault v. Peck, 97-2099

Page 1131

158 F.3d 1131

78 Fair Empl.Prac.Cas. (BNA) 600,

74 Empl. Prac. Dec. P 45,711, 130 Ed. Law Rep. 117

Joanne B. MIGNEAULT, Plaintiff-Appellee, v. Richard PECK, President; David L. McKinney, Vice President for Business and Finance; Paul Roth, M.D., Dean of the School of Medicine; Romeo Ortiz Director of Human Resources, Defendants and University of New Mexico; Jane E. Henney, M.D., Vice President for Health Sciences, Defendants-Appellants United States of America, Intervenor American Association of Retired Persons, Amicus Curiae.

No. 97-2099.

United States Court of Appeals, Tenth Circuit.

Oct. 23, 1998.

Donna L. Dagnall, Albuquerque, New Mexico, for Plaintiff-Appellee.

Paula I. Forney of Law Offices, Santa Fe, New Mexico, for Defendants-Appellants.

Seth M. Galanter (Jessica Dunsay Silver with him on the brief), Department of Justice, Washington, D.C., for Intervenor.

Cathy Ventrell-Monsees and Laurie A. McCann of American Association of Retired Persons, Washington, D.C., on the brief for Amicus Curiae.

Before PORFILIO, McKAY and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

Plaintiff Joanne Migneault brought this action against the University of New Mexico ("the University"), its Board, and several of its employees under 42 U.S.C. § 1983 and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634. She alleged, inter alia, the defendants failed to hire her for an employment position due to age discrimination in violation of the ADEA and the Equal Protection Clause of the Fourteenth Amendment. This appeal arises out of the district court's interlocutory order denying (1) Eleventh Amendment immunity to defendant University from Ms. Migneault's ADEA claim, and (2) qualified immunity to defendant Dr. Jane Henney from Ms. Migneault's § 1983 claim alleging a violation of her equal protection rights. The University and Dr. Henney appeal the district court's denial of the defendants' motions to dismiss and for summary judgment on these issues. We exercise jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in part and reverse in part.

BACKGROUND

Ms. Migneault was an employee of the University, a state institution, from March 1982 through December 1994. She was placed on lay-off status in March 1994 and laid off in June 1994, after the University decided to eliminate her position as Assistant to the Director of the Center for Non-Invasive Diagnosis. The University, however, permitted her to work through December 1994. During the time period at issue, she was married to Robert L. Migneault, the Dean of Library Sciences at the University. She was over forty years old at all relevant times.

In March 1994, Ms. Migneault applied for the position of Executive Secretary to the Vice President for Health Sciences at the University. The position was two grades lower on the University personnel scale than her position at the Center for Non-Invasive Diagnosis and paid roughly $10,000 less than her salary at that time. Dr. Henney, the Vice President of Health Sciences, interviewed four finalist candidates for the Executive Secretary position, including Ms. Migneault. Three of the four candidates were over the age of forty. Dr. Henney ultimately hired Ms. Rose Johnson, who was under forty years old. Ms. Migneault was told she was not offered the job because she was overqualified and because there was a feeling she would not be happy in the position. Ms. Migneault alleges these reasons were pretextual for age discrimination. ¹

On March 28, 1995, Ms. Migneault filed an age discrimination charge under the ADEA with the Equal Employment Opportunity Commission. After the requisite sixty days elapsed with no EEOC action, Ms. Migneault filed this lawsuit claiming the defendants: (1) violated the ADEA by terminating her position and not hiring her for the Executive Secretary position or for another position (Administrator Coordinator III) because of her age; (2) violated the First Amendment by refusing to consider her for an appropriate position at the University because of her affiliation and support for the Center for Non-Invasive Diagnosis and her marriage to a Dean on campus; (3) violated the Equal Protection Clause by violating her First Amendment rights and the ADEA; (4) violated her procedural and substantive due process rights as guaranteed by the Fifth and Fourteenth Amendments by violating the University's Business Policy Provisions; and (5) retaliated against her for filing a charge with the Equal Employment Opportunity Commission by failing to return her from layoff status.

On June 13, 1996, the defendants moved to dismiss Ms. Migneault's claims. The defendants subsequently moved for summary judgment on December 2, 1996. The district court ruled on both motions together, granting them in part and denying them in part. The district court's order dismissed all Ms. Migneault's claims except for her ADEA claim against the University and her equal protection claim under § 1983 against Dr. Henney. ²

In its motion to dismiss, the University claimed Ms. Migneault's ADEA suit was barred by Eleventh Amendment immunity. It claimed Congress did not validly abrogate states' Eleventh Amendment immunity since the ADEA was not enacted pursuant to the Fourteenth Amendment under which Congress derives its sole constitutional authority to abrogate.

The University further claimed Congress could not have enacted the ADEA pursuant to its powers under the Fourteenth Amendment because age is not a suspect class. The district court rejected both arguments, relying on Hurd v. Pittsburgh State Univ., 29 F.3d 564 (10th Cir.1994), cert. denied, 513 U.S. 930, 115 S.Ct. 321, 130 L.Ed.2d 282 (1994), where this court specifically held the ADEA, as amended, was enacted pursuant to Congress' legislative power under § 5 of the Fourteenth Amendment. The court thus denied the University's motion to dismiss on Eleventh Amendment grounds.

In the defendants' summary judgment motion, Dr. Henney argued she was immune from Ms. Migneault's equal protection claim under the doctrine of qualified immunity. She claimed she was entitled to the immunity because Ms. Migneault failed to show Dr. Henney's actions violated clearly established law. The district court rejected Dr. Henney's argument, ruling she was not entitled to qualified immunity. In doing so, the court found Ms. Migneault's complaint stated an equal protection violation and the illegality of age discrimination was clearly established such that a reasonable person in Dr. Henney's position would have understood her conduct violated the Equal Protection Clause. Consequently, the district court denied Dr. Henney's motion for summary judgment on this issue.

ANALYSIS

Eleventh Amendment Immunity

We review de novo the district court's denial of a motion to dismiss for lack of subject matter jurisdiction, see Brumark Corp. v. Samson Resources Corp., 57 F.3d 941, 944 (10th Cir.1995), and the claim that a suit is barred by the Eleventh Amendment. Powder River Basin Resource Council v. Babbitt, 54 F.3d 1477, 1483 (10th Cir.1995).

The Eleventh Amendment to the United States Constitution restricts federal jurisdiction over "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. Although by its language the Eleventh Amendment might appear to apply only to cases against states relying on federal diversity jurisdiction, the Supreme Court has long interpreted it to extend to suits arising under the federal constitution or federal law. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (citing Hans v. Louisiana, 134 U.S. 1, 11-14, 10 S.Ct. 504, 33 L.Ed. 842 (1890)).

Eleventh Amendment immunity is not absolute. A state may consent to be sued in federal court, or Congress may abrogate sovereign immunity. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985). To abrogate Eleventh Amendment immunity, Congress must have " 'unequivocally expresse[d] its intent to abrogate the immunity,' " and "acted 'pursuant to a valid exercise of power.' " Seminole Tribe, 517 U.S. at 55, 116 S.Ct. 1114 (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985)) (alteration in original). After the Court's ruling in Seminole Tribe, it is clear Congress may only abrogate Eleventh Amendment immunity when it acts pursuant to its legislative authority under § 5 of the Fourteenth Amendment. Id. at 59, 65-66, 116 S.Ct. 1114.

The ADEA makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). The statute excludes from its coverage age discrimination that is reasonably necessary to satisfy bona fide occupational qualifications or is based on reasonable factors other than age. Id. § 623(f). An employer violating the ADEA may be liable for legal and equitable relief. Id. § 626(b), (c). The 1974 amendments to the ADEA added to the definition of employer, a State, its political subdivisions, agencies or instrumentalities. Pub.L. 93-259, § 28(a)(1)-(4), Apr. 8, 1974, 88 Stat. 55 (codified as 29 U.S.C. § 630(b)). The parties do not dispute the University is an employer under the ADEA.

The University claims the ADEA did not validly abrogate Eleventh Amendment immunity as it was enacted pursuant to the Commerce Clause rather than the Fourteenth Amendment, and does not contain an unequivocal intent to abrogate. In the alternative, the University argues the ADEA exceeds Congress' power to legislate under § 5 of the Fourteenth Amendment.

We can summarily dispose of the bulk of the University's argument since we have already ruled on this precise issue. In Hurd...