Velasquez v. Frapwell

Page 389

160 F.3d 389

159 L.R.R.M. (BNA) 2782, 74 Empl. Prac. Dec. P

45,585,

130 Ed. Law Rep. 511

Albert J. VELASQUEZ, Plaintiff-Appellant, v. Dorothy J. FRAPWELL and the Trustees of Indiana University Defendants-Appellees and United States of America, Intervening Plaintiff-Appellant.

Nos. 98-1547, 98-2034.

United States Court of Appeals Seventh Circuit.

Argued Oct. 2, 1998.

Decided Nov. 12, 1998.

Michael A. Kiefer (argued), Garrison & Kiefer, Indianapolis, IN, for Albert J. Velasquez in No. 98-1547.

Susan B. Tabler, Pamela V. Keller (argued), Ice, Miller, Donadio & Ryan, Indianapolis, IN, for Dorothy J. Frapwell.

Pamela V. Keller (argued), Ice, Miller, Donadio & Ryan, Indianapolis, IN, for Trustees of Indiana University in No. 98-1547.

Michael A. Kiefer, Garrison & Kiefer, Indianapolis, IN, for Albert J. Velasquez in No. 98-2034.

Susan B. Tabler, Pamela V. Keller (argued), Ice, Miller, Donadio & Ryan, Indianapolis, IN, for Trustees of Indiana University in No. 98-2034.

Mark Stern, Department of Justice, Civil Division, Appellate Section, Carl E. Goldfarb (argued), Department of Justice, Civil Division, Appellate Staff, Washington D.C., for United States in No. 98-2034.

Before POSNER, Chief Judge, and CUMMINGS and EVANS, Circuit Judges.

POSNER, Chief Judge.

The plaintiff was employed as a lawyer by Indiana University. He was fired, and sued the University, seeking damages. The suit charges national-origin discrimination (the plaintiff is Hispanic) in violation both of Title VII and the equal protection clause. It also (and this turns out to be the more interesting part of the case) charges a violation of the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. §§ 4301 et seq. USERRA forbids employment discrimination on the basis of membership in the armed forces, § 4311(a), and authorizes private suits for damages or injunctive relief against the employer--including a state employer. §§ 4303(4)(A)(iii), 4323(c)(1)(A), (3), (7). Velasquez is a member of the Indiana National Guard, and he contends that he was fired in part because of absences from his university job that were necessitated by his national guard work.

The district court granted summary judgment for the University on the national-origin claim and dismissed the USERRA claim as barred by the Eleventh Amendment; Indiana University is conceded to be an arm of the State of Indiana. Woods v. Indiana University-Purdue University, 996 F.2d 880, 883 (7th Cir.1993); Shelton v. Trustees of Indiana University, 891 F.2d 165, 166 (7th Cir.1989); Kashani v. Purdue University, 813 F.2d 843 (7th Cir.1987); see Regents of University of California v. Doe, 519 U.S. 425, 117 S.Ct. 900, 137 L.Ed.2d 55 (1997). The United States intervened in the suit, as was its right, 28 U.S.C. § 2403(a); Varner v. Illinois State University, 150 F.3d 706, 708 (7th Cir.1998); College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 148 F.3d 1343, 1346 (Fed.Cir.1998); In re Creative Goldsmiths of Washington, D.C., Inc., 119 F.3d 1140, 1143 (4th Cir.1997), to defend the statute. USERRA explicitly subjects states to liability for violating it, 38 U.S.C. § 4323(c)(2)(B)(7), and the effect of the district court's invoking the Eleventh Amendment was to invalidate this provision. Although one count of the complaint names the plaintiff's supervisor as defendant, the count based on USERRA names only the university, that is, the state.

The Supreme Court held recently that Congress cannot abrogate a state's sovereign immunity by a federal statute based on Congress's power over various forms of commerce, because that power was conferred on Congress by the original Constitution, which predates the Eleventh Amendment and so cannot limit it. Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). Velasquez responds that USERRA is based on section 5 of the Fourteenth Amendment, and the United States that it is based on the grant of war powers in Article I and that this grant should be treated differently from the grant of power over commerce. Velasquez also supports the argument of the United States, but the United States takes no position on Velasquez's invocation of the Fourteenth Amendment.

Section 5 authorizes Congress to pass statutes enforcing the amendment's other provisions, and since it both postdates the Eleventh Amendment and is part of an amendment designed to shift power from the states to the federal government, it is not limited by the earlier amendment. Seminole Tribe v. Florida, supra, 517 U.S. at 65-66, 116 S.Ct. 1114; Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). Velasquez argues that USERRA enforces the equal protection clause of the Fourteenth Amendment by creating remedies for military personnel who are discriminated against on the basis of their military status. Little significance can be attached to the fact that the statute does not purport to be based on section 5. EEOC v. Wyoming, 460 U.S. 226, 243 n. 18, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983); Varner v. Illinois State University, supra, 150 F.3d at 712; Doe v. University of Illinois, 138 F.3d 653, 658-60 (7th Cir.1998); Goshtasby v. Board of Trustees, 141 F.3d 761, 768 (7th Cir.1998); Ussery v. Louisiana, 150 F.3d 431, 436-37 (5th Cir.1998). USERRA does not indicate which provision or provisions of the Constitution authorize it; Congress could not have cared; it would doubtless be happy if any provision enabled the section of USERRA that authorizes suits against the state to survive challenge under the Eleventh Amendment. If that provision is section 5 of the Fourteenth Amendment, Congress would hardly object to our holding that USERRA is authorized by section 5's grant of power to Congress.

But if section 5 is not to be distended beyond all reasonable bounds, it cannot be used to authorize legislation so remote from the policies and objectives of the equal protection clause as this statute is. City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997); Mills v. Maine, 118 F.3d 37, 47-49 (1st Cir.1997); see generally Pennhurst State School v. Halderman, 451 U.S. 1, 15-17, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), warning against expansive interpretations of section 5. To begin with, there can be no contention that to fire a worker because his military service prevents him from discharging the duties of his civil job actually violates the equal protection clause; for there is no invidious or irrational discrimination in such an action. So there can be no question of USERRA's "enforcing" a provision of the Fourteenth Amendment in a literal sense. Nor do military personnel constitute a historically disadvantaged ("suspect") class, like members of racial and religious minorities, who might be thought in need of special protections--of a glacis in front of the core prohibitions of the amendment--in order to make those prohibitions fully effective. E.g., City of Rome v. United States, 446 U.S. 156, 177-78, 100 S.Ct. 1548, 64 L.Ed.2d 119 (1980); Varner v. Illinois State University, supra, 150 F.3d at 716-17. Military personnel are no more a discrete and insular minority than police or firemen. Rumsey v. New York State Dept. of Correctional Services, 19 F.3d 83, 92 (2d Cir.1994).

We are mindful that the Supreme Court said much the same thing about persons 50 years old and older in Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 313-14, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976) (per curiam), yet that hasn't stopped us from holding that the Age Discrimination in Employment Act is authorized by section 5. Goshtasby v. Board of Trustees, supra; cf. Varner v. Illinois State University (Equal Pay Act); Doe v. University of Illinois (Title IX); Alsbrook v. City of Maumelle, 156 F.3d 825 (8th Cir.1998) (ADA); Kimel v. Florida Board of Regents, 139 F.3d 1426 (11th Cir.1998) (same); Coolbaugh v. Louisiana, 136 F.3d 430 (5th Cir.1998) (same). Why then should we balk at USERRA? But the precise holding of Murgia was only that, because the aged are not as vulnerable as certain other groups, such as blacks, they are not entitled to have their claims of discrimination evaluated under the generous (to plaintiffs) standard of "strict scrutiny." The Court did not say or imply that discrimination on the basis of age cannot violate the equal protection clause. The age discrimination law (and, mutatis mutandis, the laws forbidding discrimination against women and against people with disabilities) is founded on the claim that older workers are disadvantaged because employers harbor negative stereotypes of older people, attributing to all of them the age-related working impairments of some. In City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985), the Supreme Court, after holding that the mentally retarded are not a group entitled to have their claims of discrimination judged under a heightened standard of review such as strict scrutiny, invalidated the denial of a permit for a home for mentally retarded persons as founded on "irrational prejudice against the mentally retarded." Id. at 450, 105 S.Ct. 3249.

Reserve members of the armed forces are not in a comparable position to the aged or the mentally retarded. There is little evidence that employers harbor a negative stereotype about military service or that Congress believes they do. It's not as if pacifism were part of the civil religion of the United States. In discussing a predecessor statute to USERRA, the Supreme Court made clear that the statute's main purpose was to encourage people to join the reserves. Monroe v. Standard Oil Co., 452 U.S. 549, 557-60, 101 S.Ct. 2510, 69 L.Ed.2d 226 (1981); id. at 574-75, 101 S.Ct. 2510 (dissenting opinion); see also 38 U.S.C. § 4301(a)(1); Gummo v. Village of Depew, 75 F.3d 98, 104 (2d Cir.1996); Boyle v. Burke, 925 F.2d 497, 502 (1st Cir.1991). The Court did not suggest that the...