Allain v. Board of Supervisors for the University of Louisiana System
Filing
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MEMORANDUM RULING re 39 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim Upon Which Relieve can be Granted, filed by University of Louisiana System. Signed by Judge Robert G James on 10/29/15. (crt,Crawford, A)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
SUSAN ALLAIN
CIVIL ACTION NO. 13-2754
VERSUS
JUDGE ROBERT G. JAMES
BOARD OF SUPERVISORS OF THE
UNIVERSITY OF LOUISIANA SYSTEM
D/B/A UNIVERSITY OF LOUISIANA
AT MONROE
MAG. JUDGE KAREN L. HAYES
RULING
This is an employment discrimination case in which Plaintiff Susan Allain (“Allain”) asserts
claims against the University of Louisiana System d/b/a University of Louisiana at Monroe (“ULM”)
under the Age Discrimination in Employment Act, 29 U.S.C. § 623, et seq. (“the ADEA”) and the
Family Medical Leave Act, 29 U.S.C. § 2601, et seq. (“the FMLA”). She also asserts a state law
breach of employment contract claim.
Pending before the Court is ULM’s “Motion to Dismiss for Lack of Subject Matter
Jurisdiction and Failure to State a Claim Upon Which Relief can be Granted.” [Doc. No. 39].
For the following reasons, the motion is GRANTED.
I.
FACTS AND PROCEDURAL BACKGROUND1
Allain was employed at KEDM 90.3 Public Radio (“KEDM”) for approximately 16 years.
ULM operates KEDM. From October 2010 through March 1, 2011, Allain was on FMLA-protected
leave to have back surgery. Approximately six weeks after she returned, on April 15, 2011, Jeffrey
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Most of the underlying facts in this dispute are not relevant to the instant Motion to
Dismiss and are adequately summarized in this Court’s Ruling on ULM’s “Motion to Dismiss for
Failure to State a Claim Upon Which Relief can be Granted and Motion for Summary
Judgment.” [Doc. No. 24].
Cass, Dean of the Colleges of Arts and Sciences, informed Allain that she was being terminated
without cause. Immediately after Allain’s termination, her responsibilities were assigned to Ashley
Yeldell, a 26-year-old female. Ultimately, Allain’s position was filled by Lila Strode, a 48-year-old
female. KEDM also dismissed two other women over the age of 55 between 2009 and 2011, both
of whom were replaced by younger individuals.
Allain initiated this action on September 27, 2013, asserting claims under Title VII, the
ADEA, the ADA, the FMLA, and state contract law.
On September 8, 2014, ULM filed a motion to dismiss and, alternatively, for summary
judgment. This Court partially granted the motion, dismissing Allain’s Title VII and ADA claims,
but finding issues of material fact that precluded summary judgment as to the ADEA claim, FMLA
claim, and the state law claim. [Doc. No. 24-25].
The Court set trial on the remaining claims for November 4, 2015. On October 16, 2015,
ULM filed the instant motion to dismiss. In the motion, ULM argues that the Eleventh Amendment
bars suit against it based on the ADEA, FMLA, or state contract law. Allain filed an opposition.
[Doc. No. 38]. ULM filed a reply. [Doc. No. 41].
II.
LAW AND ANALYSIS
Generally, the Eleventh Amendment bars all persons from suing a state for money damages
in federal court. See U.S. CONST. AMEND. XI; Seminole Tribe v. Florida, 517 U.S. 44, 54 (1996).
“Even in cases where the State itself is not a named defendant, the State’s Eleventh Amendment
immunity will extend to any state agency or other political entity that is deemed the ‘alter ego’ or
‘arm’ of the State.” Vogt v. Board of Com’rs of Orleans Levee Dist., 294 F.3d 684, 688-89 (5th Cir.
2002) (citing Regents of the Univ. Of California v. Doe, 519 U.S. 425, 429 (1997). It is irrelevant
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that ULM failed to raise this issue until the eve of trial; sovereign immunity bears on the Court’s
subject matter jurisdiction and can be raised at any time by the Court or parties. See Perez v. Region
20 Educ. Serv. Ctr., 307 F.3d 318, 333 n. 8 (5th Cir. 2002).
A.
ULM as an “Arm” of the State.
The first question, then, is whether Allain has sued an “arm” of the state entitled to immunity
from suit. The Fifth Circuit has consistently held that the University of Louisiana System Board and
the institutions under its control are “arms” of the state entitled to sovereign immunity. See Strong
v. Grambling State Univ., 2015 WL 1401335, No. 13-00808, at *4 (W.D. La. Mar. 25, 2015)
(“Based on controlling precedent, the court finds that Grambling and the UL System Board are arms
of the state and are thus entitled to sovereign immunity.”).
Here, Allain argues that her suit is actually against public radio station KEDM, a quasiseparate entity of ULM that does not rely on the general funds of the University nor the general tax
revenue of the State of Louisiana. In effect, Allain argues, this is a suit against a local governmental
agency as opposed to a state agency.
However, Allain’s Complaint named the University of Louisiana System Board of
Supervisors d/b/a University of Louisiana at Monroe as Defendant. [Doc. No. 1]. Allain did not
name KEDM as a defendant. ULM answered the complaint showing its proper name and status for
purposes of litigation is the “University of Louisiana System, an agency of the State of Louisiana,”
noting that the Defendant was originally named incorrectly as the Louisiana Board of Supervisors.
Allain did not challenge this status until she filed her opposition to the instant motion. Indeed, the
parties have always treated ULM as the only Defendant in this action. Finally, Allain herself has
referred to ULM as her employer through its radio station KEDM. See [Doc. No. 22] (“Susan Allain
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was a long-term employee of the University of Louisiana at Monroe through its radio station
KEDM”).
Allain brought suit against ULM, an entity within the University of Louisiana System. Per
Fifth Circuit precedent, ULM is an “arm” of the state and not subject to suit absent waiver or
congressional abrogation. See Delahoussaye v. City of New Iberia, 937 F.2d 144, 148, (5th Cir.
1991) (Finding the University of Louisiana Lafayette to be an “arm” of the state and immune from
suit under the Eleventh Amendment).
B.
Abrogation and Waiver of Immunity as to the ADEA Claim
The Court next turns to whether Congress has abrogated Louisiana’s immunity with respect
to claims brought against it under the ADEA or, if not, whether it has waived its right to claim
sovereign immunity.
“Congress can single-handedly strip the states of their Eleventh Amendment immunity and
thereby authorize federal court suit by individuals against the states. When Congress does this, it is
exercising its power to abrogate Eleventh Amendment immunity.” Pace v. Bogalusa City School
Board, 403 F.3d 272, 277 (5th Cir. 2005).
It is now well settled that the ADEA does not abrogate sovereign immunity. See Raj v.
Louisiana State University, 714 F.3d 322, 325 (5th Cir. 2013) (Holding the Eleventh Amendment
barred plaintiff’s claims under the ADEA against LSU, LSU Health, and the LSU Board.). Allain
does not challenge Fifth Circuit precedent or contend that Louisiana has waived the defense with
respect to the ADEA claim. Thus, ULM is immune from suit under the ADEA.
C.
Abrogation and Waiver of Immunity as to the FMLA Claim
The crux of Allain’s defense centers on the FMLA claim. Although somewhat unclear, it
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appears Allain argues that Congress has abrogated the states’ sovereign immunity with respect to
the FMLA claim at issue in this case. Alternatively, she contends that the State has waived immunity.
In pertinent part, the FMLA guarantees eligible employees twelve workweeks of leave during
any twelve month period for the following reasons:
(A)
Because of the birth of a son or daughter of the employee and in order to care
for such son or daughter.
(B)
Because of the placement of a son or daughter with the employee for
adoption or foster care.
(C)
In order to care for the spouse, or a son, daughter, or parent, of the employee, if such
spouse, son, daughter, or parent has a serious health condition.
(D)
Became of a serious health condition that makes the employee unable to perform the
functions of the position of such employee.
29 U.S.C. § 2612(a)(1).
In Nev. Dep’t of Human Resources v. Hibbs, 538 U.S. 721, 740 (2003), the Supreme Court
held that Congress abrogated the states’ sovereign immunity with respect to subsection C of the
FMLA–the family-care provision. However, the Fifth Circuit has routinely held that self-care claims
under subsection D, when brought against the state, are still immunized by the Eleventh Amendment.
Bryant v. Tex. Dep’t. of Aging and Disability Servs., 781 F.3d 764, 769 (5th Cir. 2015) (“Congress
has validly abrogated states’ sovereign immunity with respect to the FMLA’s family-care provision.
It has not done so with respect to the statute’s self-care provision; thus states may still assert an
Eleventh Amendment immunity defense against claims based on that provision”).
Here, Allain claims the University of Louisiana System retaliated against her because of the
leave she took pursuant to subsection D of the FMLA. As noted, the Fifth Circuit has held that
Congress did not intend to abrogate sovereign immunity with respect to self-care claims. Thus,
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Congress has not abrogated Louisiana’s sovereign immunity with respect to Allain’s FMLA claim.
However, Allain may proceed with her FMLA claim if, as she contends, Louisiana has
waived its immunity defense with respect to the FMLA claim because “[e]very single state
institution has adopted the FMLA as a benefit to its employees.” [Doc. No. 38, p.3].
That a state can waive immunity from suit seems inherently inconsistent with the notion that
sovereign immunity is cut from a jurisdictional cloth. Still, it is firmly established that “if a state
waives its immunity and consents to suit in federal court, the Eleventh Amendment does not bar the
action.” Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 (1985). A state may waive sovereign
immunity by voluntarily invoking federal jurisdiction; for example, courts have held that a state’s
removal of a case to federal court establishes a waiver of sovereign immunity. See Meyers ex rel.
Benzing v. Tex. 410 F.3d 236, 242 (5th Cir. 2005). Courts have also held a state waives immunity by
intervening in a federal court suit. Lapides v. Board of Regents of University System of Georgia, 535
U.S. 613, 620 (2002).
In order to be effective, however, a Government’s waiver of sovereign immunity must be
“unequivocally expressed.” See Irwin v. Dept. of Veteran Affairs, 498 U.S. 89, 95 (1990) (quoting
United States v. Mitchell, 445 U.S. 535, 538 (1980), and United States v. King, 395 U.S. 1, 4
(1969)). The Supreme Court has explained, “[i]n deciding whether a State has waived its
constitutional protection under the Eleventh Amendment, we will find waiver only where stated by
the most express language or by such overwhelming implications from the text as (will) leave no
room for any other reasonable construction.” Edelman v. Jordon, 415 U.S. 651, 673 (1974).
ULM has not “unequivocally expressed” a waiver of sovereign immunity here. Other courts
within this circuit have held that adopting the FMLA as a benefit to employees does not amount to
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a waiver from suit. See Swanson v. Railroad Com’n of Tex., 2011 WL 2039601, 11-80 *at 6 (S.D.
Tex. May 24, 2011). In Swanson, a plaintiff argued that Texas waived its sovereign immunity
defense to a retaliation claim under the FMLA by enacting state statutes embracing the FMLA and
“voluntarily encouraging the plaintiff to participate in the FMLA by policies and procedures.” The
Court held that Texas’ actions did not establish an unfaltering intent to waive sovereign immunity:
The Supreme Court has explained, “[i]n deciding whether a State has waived its
constitutional protection under the Eleventh Amendment, we will find waiver only
where stated by the most express language or by such overwhelming implications
from the text as will leave no room for any other reasonable construction.” Edelman
v. Jordon, 415 U.S. 651, 673 (1974). Here, Plaintiff relies upon state law which
entitles state employees to leave under the FMLA. (D.E. 12 at 4 (citing Tex. Gov’t
Code § 661.912).) This does not constitute a waiver of sovereign immunity. Rather,
Texas is merely recognizing employee’s rights under federal law to take FMLA
leave.”
Swanson, 2011 WL 2039601 at *6.
Likewise, in the instant case, a state institution’s adoption of the FMLA as a benefit to its
employees does not demonstrate that Louisiana intends to waive its immunity from suit under
subsection D of the statute. Therefore, ULM is immune from Allain’s suit under subsection D of the
FMLA.
D.
State Law Claim
Finally, the Court also lacks jurisdiction over Allain’s state law breach of contract claims.
The Supreme Court in Pennhurst State School and Hospital v. Halderman held that sovereign
immunity barred federal courts from hearing state law claims brought in federal court against state
entities. 465 U.S. 89, 117 (1984). Because Allain has brought her claims against a state agency, and
because “Louisiana has not waived its sovereign immunity for suits brought in federal court,” the
Eleventh Amendment also bars the state law claims. See Raj, 714 F.3d at 329 (quoting Richardson,
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118 F.3d at 453 (citing LA.. REV. STAT. ANN. § 13:5106(A)(2010)).
Allain now argues that ULM stipulated to this Court’s jurisdiction over the state law claims,
and, thus, this Court should retain jurisdiction. However, there is nothing in the record to indicate
that ULM unequivocally waived the sovereign immunity defense with respect to the state law claims.
ULM did not remove this case to federal court, nor did it assert any claims in federal court. ULM did
litigate this matter in federal court, but this does not amount to a waiver of sovereign immunity;
indeed, the Fifth Circuit has held that a state does not waive sovereign immunity by raising the issue
for the first time on appeal after litigating the action on the merits in district court. Union Pacific R.
Co v. La. Public Service Com’n, 662 F.3d 336, 341 (5th Cir. 2011). (Finding no waiver of sovereign
immunity through litigation conduct when state raised issue for first time on appeal because the state
“never chose to litigate this suit in federal forum.”). Therefore, ULM’s litigation conduct in the case
at hand does not amount to a waiver of sovereign immunity as to her state contract law claim either.
III.
CONCLUSION
Allain’s position merits sympathy. Her original action included claims under the ADA and
Title VII that this Court dismissed. The Supreme Court has held that Congress abrogated state
sovereign immunity with respect to at least some violations of the ADA. United States v. Georgia,
546 U.S. 151, 159 (2006). At the time Allain filed this case, not all claims were barred. Further, this
case was filed almost simultaneously with the Fifth Circuit’s decision in Raj, which held that
Louisiana public schools and their boards of supervisors are “arms” of the state for Eleventh
Amendment Purposes and not subject to suit under the ADEA absent consent.
However, Allain has sued ULM, an entity controlled by the University of Louisiana System
and an “arm” of the state. Fifth Circuit precedent requires this case to be dismissed absent waiver
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or abrogation of sovereign immunity. There has been no waiver here, nor has Congress abrogated
the states’ sovereign immunity under the statutes at issue in this case.
The Court finds that Allain’s claims against ULM under the ADEA, FMLA, and state law
should be DISMISSED WITHOUT PREJUDICE.2
MONROE, LOUISIANA, this 29th day of October, 2015.
2
The Court expresses no opinion as to whether Allain may proceed with her lawsuit in
state court.
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