Opinion
Case No. 00 C 6352.
March 9, 2001.
MEMORANDUM OPINION AND ORDER
Plaintiff Frederick Rash ("plaintiff") has filed suit against several defendants alleging breach of contract, violations of unspecified United States Department of Labor rules and regulations, and race discrimination. In addition to his employer, plaintiff has named the United States and Illinois Departments of Labor as defendants. Both of these defendants contend that they are immune from suit and have moved to dismiss the Complaint against them. For the reasons stated below, we grant these motions.
BACKGROUND
The allegations of plaintiffs Complaint are taken as true for purposes of this motion. Plaintiff who is pro se, has alleged that his employer, Minority Intermodal Specialists, Inc., hired him in approximately July 1997 and promised him a raise after a forty-five day period of probation. According to plaintiff, he did not receive this raise until January 31, 1998 and did not receive any retroactive pay for the period that he should have been receiving a higher salary. He further claims that he did not receive the same salary as others in a comparable position and that he was demoted for discriminatory reasons. These allegations are simple enough and are aimed at plaintiffs employer.
Plaintiffs theory against the two governmental defendants is more difficult to parse from his Complaint. He claims that his employer's failure to pay overtime is a violation of the United States and State of Illinois Department of Labor rules and regulations. Although he does not allege this explicitly, he seems to be alleging that these defendants did not enforce the appropriate (and unnamed) regulations against his employer. However, later in the Complaint, plaintiff alleges that the Illinois Department of Labor, Fair Labor Standards Division actually found that his employer had violated its regulations. In any event, neither defendant is clearly accused directly of any specific conduct.
DISCUSSION
Both defendants have claimed immunity from suit. The State of Illinois contends that the Eleventh Amendment of the United States Constitution bars plaintiff from suing it. It is correct. As the State points out, the Eleventh Amendment prohibits suits against states, state agencies or state officials in their official capacities. Pennhurst State School v. Halderman, 465 U.S. 89, 99-100 (1984). To be sued in federal court, states must waive this immunity or Congress must do so for them through legislation permitted by section five of the Fourteenth Amendment. Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985). Neither exigency exists here and, accordingly, we dismiss the State of Illinois from the case.
The United States Department of Labor argues that, as an agency of the United States, it may not be sued unless the plaintiff has alleged that it has waived its sovereign immunity and consented to suit. Such a waiver must be explicitly expressed in statute.United States v. Mitchell, 455 U.S. 535, 538 (1980). Plaintiff has not cited any such statute. Assuming that plaintiff, who generally alleges that he has been damaged by the Department of Labor, is suing under the Federal Tort Claims Act, 28 U.S.C. § 1346 (b)(1), plaintiff has failed to demonstrate that he has exhausted his administrative remedies as required by that Act prior to filing suit. Sullivan v. United States, 21 F.3d 198, 203 (7th Cir. 1994).
Finally, to the extent that plaintiff claims that the Fair Labor Standards Act has been violated (and this is quite a stretch from the Complaint), plaintiff also fails to state a claim for relief. That statute provides that only the Secretary of Labor may file suit for alleged violations. 29 U.S.C. § 216 (b).
CONCLUSION
For all of the reasons stated above, we dismiss the case against the United States Department of Labor and the Illinois Department of Labor. The case against the remaining defendants is set for status April 10, 2001 at 9:00 A.M.