Opinion
3:13-cv-00047-RCJ-WGC
04-26-2013
C. TERESA MARTIN, Plaintiff, v. NEVADA DIVISION OF INSURANCE, Defendant.
ORDER
Plaintiff C. Teresa Martin has sued the State of Nevada's Division of Insurance in this Court for age and sex discrimination. Defendant has moved to dismiss the claim for age discrimination under the Age Discrimination in Employment Act ("ADEA"). The Court grants the motion.
The Court generally has no jurisdiction to entertain a suit against the State of Nevada or one of its departments by one of its citizens absent the State's consent. See U.S. Const. amend. XI; Hans v. Louisiana, 134 U.S. 1 (1890). Nevada has explicitly refused to waive its Eleventh Amendment immunity from suit in federal court as a general matter, see Nev. Rev. Stat. § 41.031(3), and the State did not remove the present case from state court, so waiver does not apply in the present case. Although § 5 of the Fourteenth Amendment gave Congress the power to abrogate the States' Eleventh Amendment immunity with respect to discrimination suits in some circumstances, see Fitzpatrick v. Bitzer, 427 U.S. 445, 455-56 (1976) (Title VII), Congress did not exercise that power in passing ADEA, because "Congress had virtually no reason to believe that state and local governments were unconstitutionally discriminating against their employees on the basis of age," Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91 (2000). The pre-Kimel decisions from inferior courts that Plaintiff cites in opposition are no longer persuasive.
CONCLUSION
IT IS HEREBY ORDERED that the Motion to Dismiss (ECF No. 12) is GRANTED.
IT IS SO ORDERED.
____________________
ROBERT C. JONES
United States District Judge