Opinion
CIVIL ACTION CAUSE NUMBER 2:00-CV-364-J
February 6, 2002
ORDER GRANTING IN PART AMENDED MOTION TO DISMISS
Before the Court is Defendant's amended motion to dismiss some but not all of plaintiffs' claims for failure to state a claim upon which relief can be granted and on the basis of its 11th Amendment immunity. This motion is granted in part as follows.
Claims Dismissed by Agreement
Plaintiffs properly having agreed to dismissal of their claims for punitive damages under Title VII/ and the Texas Labor Code,/ both of those punitive damages claims are hereby dismissed by agreement.
Oden v. Oktibbeha County, 246 F.3d 458, (5th Cir.), cert. denied, 122 S.Ct. 341 (2001) (punitive damages not available against governmental entities or political subdivisions).
Like Title VII, punitive damages are unavailable against State entities. See Texas Labor Code § 21.2585(b) (Vernon's 1996)("A complainant may recover punitive damages against a respondent, other than a respondent that is a governmental entity, if the complainant emonstrates that the respondent engaged in a discriminatory practice with malice or with reckless indifference to the state-protected rights of an aggrieved individual.") (emphasis added).
Plaintiff's state in their response to Defendant's motion that they do not assert a Title VII claim for discrimination on the basis of disability. Plaintiffs having abandoned that plead claim, it is also dismissed.
Eleventh Amendment Immunity Issues Texas Labor Code
Defendant further seeks dismissal of Plaintiffs' claims brought under Texas Labor Code §§ 21.051 and 21.055, on the basis of Eleventh Amendment immunity. The Supreme Court has held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State. Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355-56, 39 L.Ed.2d 662 (1974). "Texas Tech, as a state institution, clearly enjoys Eleventh Amendment immunity." Wallace v. Texas Tech University, 80 F.3d 1042 (5th Cir. 1996) (citing Laxey v. Louisiana Board of Trustees, 22 F.3d 621, 623 (5th Cir. 1994) and Henry v. Texas Tech University, 466 F. Supp. 141, 144-146 (N.D. Tex. 1979) (recognizing immunity for both Texas Tech University and the Texas Tech University School of Medicine)). Accord Lowe v. Texas Tech University, 540 S.W.2d 297 (Tex. 1976) (finding Texas Tech University to be a state agency).
It is stipulated that "Texas Tech University Health Sciences Center School of Pharmacy is part of the Texas Tech University Health Sciences Center, which is governed by the Texas Tech University System Board of Regents," a statutory creation pursuant to the Texas Education Code. See Joint Narrative of stipulated facts filed February 4, 2002.
A state does not waive Eleventh Amendment immunity in federal courts merely by waiving sovereign immunity in its own courts. Welch v. Department of Highways and Public Transportation, 483 U.S. 468, 473-74, 107 S.Ct. 2941, 2945-46, 97 L.Ed.2d 389 (1987). "A state's constitutional interest in immunity encompasses not merely whether it may be sued, but where it may be sued." Id. at 473, 107 S.Ct. at 2946 (quoting Pennhurst State School Hospital v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984)).
Further, a State may waive its common law sovereign immunity from suit without waiving its Eleventh Amendment immunity under federal law.Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 306, 110 S.Ct. 1868, 1873, 109 L.Ed.2d 264 (1990). See also In re Allied — Signal Inc., 919 F.2d 277, 280 n. 4 (5th Cir. 1990). Thus, a State may consent to being sued in its own courts while still retaining Eleventh Amendment immunity from suit in federal court. See, e.g., Florida Dept. of Health and Rehabilitative Servs. v. Florida Nursing Home Ass'n., 450 U.S. 147, 150, 101 S.Ct. 1032, 1034, 67 L.Ed.2d 132 (1981) (state's general waiver of sovereign immunity did not constitute waiver by state of Eleventh Amendment immunity); Great N. Life Ins. Co. v. Read, 322 U.S. 47, 54-55, 64 S.Ct. 873, 877, 88 L.Ed. 1121 (1944) (same). That is the situation here. The State of Texas has expressly consented to Labor Code suits brought in state courts, but has not enacted an express consent provision regarding federal courts.
Comments in a statute's legislative history cannot supply the requisite clear and unambiguous waiver of sovereign immunity; the necessary "unequivocal expression" of elimination of sovereign immunity must be in statutory text. Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 2097, 135 L.Ed.2d 486 (1996). The court(s) referred to in the state statute may be state courts, federal courts, both, or neither. Cf. Kennecott Copper Corp. v. State Tax Comm'n., 327 U.S. 573, 579-80, 66 S.Ct. 745, 90 L.Ed. 862 (1946) (finding insufficiently clear a statute permitting suit in "any court of competent jurisdiction"), with Kimel v. Florida Bd. of Regents, 528 U.S. 62, 74-76, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) (finding sufficiently clear a statute authorizing suit in "any Federal or State court of competent jurisdiction"). However, even "vesting of jurisdiction alone is not sufficient to overcome the Eleventh Amendment." Watson v. Texas, 261 F.3d 436, 440 n. 5 (5th Cir. 2001) (citing County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 251, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985)).
Plaintiffs cite to no express state or federal statutory provision permitting or waiving Texas' Eleventh Amendment immunity from Labor Code claims. Absent such an express statutory waiver, Plaintiffs' Texas Labor Code claims must be dismissed. See Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 2097, 135 L.Ed.2d 486 (1996) (waiver must be found in express statutory language). Cf. Sherwinski v. Peterson, 98 F.3d 849, 851-52 (5th Cir. 1996) (waiver analysis of Eleventh Amendment immunity and the Texas Tort Claims Act's express "state court" jurisdictional provision).
Rehabilitation Act Claim
Defendant seeks dismissal on the basis of Eleventh Amendment immunity from Plaintiff Elaine King Miller's disability discrimination claim brought under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. The Fifth Circuit recently held that Congress did not validly abrogate the States' Eleventh Amendment immunity from suit in federal court by passage of the civil rights remedies equalization provision permitting citizens to sue States for § 504 violations in federal courts. Reickenbacker v. Foster, 274 F.3d 974 (5th Cir. 2001). However, the Fifth Circuit declined to reach the question of whether the State had waived its sovereign immunity under the Act by accepting federal monies. Plaintiff King Miller relies on that unreached waiver argument, arguing that Texas Tech University Health Sciences Center's knowing acceptance of federal monies constitutes a clear and valid waiver of its Eleventh Amendment immunity.
See 42 U.S.C.A. § 2000d-7, titled "Civil rights remedies equalization":
(a) General provision (1) A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973 [ 29 U.S.C.A. § 794], title IX of the Education Amendments of 1972 [ 20 U.S.C.A. § 1681 et seq.], the Age Discrimination Act of 1975 [ 42 U.S.C.A. § 6101 et seq.], title VI of the Civil Rights Act of 1964 [ 42 U.S.C.A. § 2000d et seq.], or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.
(2) In a suit against a State for a violation of a statute referred to in paragraph (1), remedies (including remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in the suit against any public or private entity other than a State.
(b) Effective date The provisions of subsection (a) of this section shall take effect with respect to violations that occur in whole or in part after October 21, 1986.
In support of their jurisdictional argument, Plaintiffs tender a Texas Tech University Health Sciences Center web page stating that in fiscal year 2001 out of total revenues of $394,714,994 the Center received $7,541,793 in federal monies denoted as "gifts, grants, contracts." The web page states that in fiscal year 2000 out of total revenues of $373,959,321 the Center received $5,247,371 in federal monies in "gifts, grants, contracts." In fiscal years 1999 and 1998 the Center received federal monies in secedingly smaller by still significant amounts also denominated as "gifts, grants, contracts." It is stipulated that Plaintiff King Miller came to the Health Sciences Center in August of 1997 and was terminated in the year 2000.
The Eight Circuit has held en banc that the Rehabilitation Act section prohibiting recipient of federal funds from discriminating on basis of disability was valid exercise of Congress' spending power. It reasoned that by accepting federal funds the Arkansas Education Agency had waived its Eleventh Amendment immunity with respect to claims arising under the Rehabilitation Act covering "all activities of the Department of Education." The court ruled that the abrogation provision did not impose unconstitutionally broad conditions on state agencies by mandating that state agencies or departments waive their Eleventh Amendment immunity to all claims arising under the Act if they chose to accept any level of federal funding. Bradley v. Arkansas Dept. of Educ., 235 F.3d 1079 (8th Cir. 2000)/, cert. denied sub nom., Arkansas Dept. of Education v. Jim C., ___ U.S. ___, 121 S.Ct. 2591, 150 L.Ed.2d 750 (2001)
The en banc court stated that: "Since Section 504 covers only the individual agency or department that accepts or distributes federal funds, this waiver requirement is limited in the same way. . . . The [three judge] panel opinion took the position that the waiver required would cover all activities of the State, not just the activities of the department or departments receiving federal funds. As a matter of statutory interpretation, we disagree: for reasons we have given, Section 504's definition of "program or activity' is not that broad. We acknowledge that the waiver does cover all activities of the Department of Education, and not merely those activities specifically supported by Section 504 funds."
Defendant did not seek summary judgment on immunity issues. The only evidence before the Court regarding waiver by acceptance of federal monies are the Center's own statements regarding its total revenues which, while not clear as to the nature of the federal funding or the federal programs or sources of the funding listed, clearly disclose that the Defendant did accept significant federal monies during relevant time periods.
The Defendant has not denied that it has accepted federal funds triggering the express waiver provisions of § 2000d-7. It argues instead that as a matter of constitutional law receipt of such funds cannot constitute a valid State waiver even in light of clear and unequivocal enactment of an express waiver provision by Congress. The en banc Eight Circuit has held to the contrary. The Fifth Circuit has reserved ruling on the issue. There being no contrary Fifth Circuit authority on point, Defendant's motion is denied insofar as it seeks dismissal of Plaintiff Elaine King Miller's § 504 Rehabilitation Act claim.
Conclusions
Plaintiffs having agreed to dismissal of their claims for punitive damages under Title VII and the Texas Labor Code, those punitive damages claims are dismissed.
Plaintiffs having abandoned their Title VII claim for discrimination on the basis of disability, that claim is dismissed.
Plaintiffs' employment discrimination and retaliation claims brought under the Texas Labor Code are dismissed because Defendant is entitled to Eleventh Amendment immunity as to these claims only.
Defendant's motion to dismiss Plaintiff Elaine King Miller's § 504 Rehabilitation Act claim is denied.