Graham v. State of Nebraska et al

Filing 19

MEMORANDUM AND ORDER that Defendant's motion for partial summary judgment 16 is granted and the federal Age Discrimination in Employment Act claim is dismissed. The remainder of the case is remanded to the District Court of Lancaster County , Nebraska for further processing of the state law age discrimination claims. The clerk's office is directed to mail a certified copy of this order of remand to the clerk of the District Court of Lancaster County, Nebraska. The parties shall bear their own costs. A separate judgment will be entered. Ordered by Senior Judge Joseph F. Bataillon. (Certified copy mailed as directed)(MBM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

KATHLEEN M. GRAHAM,
Plaintiff,

4:18CV3086

vs.
MEMORANDUM AND ORDER
STATE OF NEBRASKA, OFFICE OF THE
GOVERNOR,
Defendant.

This matter is before the Court on the defendant’s motion for partial summary
judgment pursuant to Fed. R. Civ. P. 56, Filing No. 16. Defendant seeks dismissal of
plaintiff’s federal claim filed under the Age Discrimination in Employment Act (ADEA), 29
U.S.C. § 621, et seq. Plaintiff filed a complaint and an amended complaint in District
Court of Lancaster County, Nebraska, containing both the ADEA claim and state law age
discrimination claims. Filing No. 1. Thereafter, defendant removed this case to federal
court, pursuant to the ADEA claim. During a status conference call with the magistrate
judge, defendant determined that it was entitled to a sovereign immunity defense on the
ADEA claim. Defendant then amended its answer to allege sovereign immunity and filed
this motion for partial summary judgment.
The case involves allegations that Governor Pete Ricketts fired his administrative
assistant, the plaintiff, who was 65 at the time, telling her the discharge was due to a
budget cut. Plaintiff contends that thereafter the Governor hired a much younger
administrative assistant in her 20’s and gave her a pay increase of $7,000-8,000. This

person allegedly did the same duties as the plaintiff, sat at plaintiff’s former desk, and
parked in her parking spot.
STANDARD OF REVIEW
Summary judgment is appropriate when, viewing the facts and inferences in the
light most favorable to the nonmoving party, “showing that the materials cited do not
establish the absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(B). The plain
language of Rule 56(c) mandates the entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). “The movant ‘bears the initial responsibility of informing the district court of the
basis for its motion,’ and must identify ‘those portions of [the record] . . . which it believes
demonstrate the absence of a genuine issue of material fact.’” Torgerson v. City of
Rochester, 643 F.3d 1031, 1042, (8th Cir. 2011) (en banc) (quoting Celotex, 477 U.S. at
323). If the movant does so, “the nonmovant must respond by submitting evidentiary
materials that set out ‘specific facts showing that there is a genuine issue for trial.’” Id.
(quoting Celotex, 477 U.S. at 324). “The inquiry performed is the threshold inquiry of
determining whether there is the need for a trial—whether, in other words, there are any
genuine factual issues that properly can be resolved only by a finder of fact because they
may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986). If “reasonable minds could differ as to the import of the evidence,”
summary judgment should not be granted. Id. at 251.
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The evidence must be viewed in the light most favorable to the nonmoving party,
giving the nonmoving party the benefit of all reasonable inferences. Kenney v. Swift
Transp., Inc., 347 F.3d 1041, 1044 (8th Cir. 2003). “In ruling on a motion for summary
judgment a court must not weigh evidence or make credibility determinations.”

Id.

“Where the unresolved issues are primarily legal rather than factual, summary judgment
is particularly appropriate.” Koehn v. Indian Hills Cmty. Coll., 371 F.3d 394, 396 (8th Cir.
2004).
DISCUSSION
This Court has found:
The Eleventh Amendment states that “[t]he Judicial power of the
United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State.” U.S. Const.
amend. XI. This immunity is provided to “states, and state agencies .... not
only from suits brought by citizens of other states, but also from suits
brought by their own citizens.” Doe v. State of Nebraska, 345 F.3d 593, 597
(8th Cir.2003) (citing Hadley v. N. Ark. Cmty. Technical Coll., 76 F.3d 1437,
1438 (8th Cir.1996)). It reaches not only state claims brought in federal court
against a state, see Randolph v. Rodgers, 170 F.3d 850, 859 (8th Cir.1999)
(citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100
(1984)), but also federal claims brought in federal court against a state, see
Doe, 345 F.3d at 597–98.
Eleventh Amendment immunity provides states with a strong
defense against suit in federal court but this immunity “is not absolute.” Doe,
345 F.3d at 597. A state may be subject to suit where: (1) the state has
unequivocally waived its sovereign immunity and consented to suit in
federal court; or (2) Congress has unequivocally, through legislation,
abrogated state immunity in order to effectuate the provisions of the
Fourteenth Amendment. Kentucky v. Graham, 473 U.S. 159, 169 (1985);
Pennhurst, 465 U.S. at 97–100; Burk v. Beene, 948 F.2d 489, 492–94 (8th
Cir.1991).
….
The Supreme Court has clearly declined to extend the abrogation
principles of Title VII to the ADEA. See Kimel v. Fla. Bd. of Regents, 528
U.S. 62, 91 (2000) (“[W]e hold that the ADEA is not a valid exercise of
Congress' power under § 5 of the Fourteenth Amendment. The ADEA's
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purported abrogation of the States' sovereign immunity is accordingly
invalid.... State employees are protected by state age discrimination
statutes, and may recover money damages from their state employers, in
almost every State of the Union.”).

Glass v. Doe, 2007 WL 2410542 *2 (D. Neb. 2007); see also Fiedler v. Nebraska Dep't
of Roads, No. 4:08CV3144, 2008 WL 4455605 *2 (D. Neb. Sept. 30, 2008).
The Court notes that the United States Supreme Court has determined that in a
suit brought under state law and pursuant to 42 U.S.C. § 1983, where the state removed
from state court, such removal constitutes a waiver of Eleventh Amendment immunity.
Lapides v. Board of Regents of University System of Georgia, 535 U.S. 613, 614 (2002).
The Court in Lapides stated:
This Court has consistently found waiver when a state attorney general,
authorized to bring a case in federal court, has voluntarily invoked that
court's jurisdiction. More importantly, in large part the rule governing
voluntary invocations of federal jurisdiction has rested upon the
inconsistency and unfairness that a contrary rule would create. A rule that
finds waiver through a state attorney general's invocation of federal-court
jurisdiction avoids inconsistency and unfairness, but a rule that, as in Ford,
denies waiver despite the attorney general's state-authorized litigating
decision does the opposite.
Id.
The Eighth Circuit has also said:

In Lapides v. Board of Regents of University System of Georgia, 535 U.S.
613, 620, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002), the Supreme Court
concluded that a state defendant had voluntarily invoked federal jurisdiction
by participating in a removal action and therefore waived its Eleventh
Amendment protection. The Court explained that the defense of sovereign
immunity must be waivable in litigation because of the “judicial need to avoid
inconsistency, anomaly, and unfairness” that would arise if states could
selectively invoke immunity to obtain litigation advantages. Id. When
determining whether a state has clearly indicated its intent to waive
immunity, a court should focus on the “litigation act the State takes that
creates the waiver,” not its motives for those acts. Id.
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In addition to joining in the removal of a case to federal court, a state can
also waive its immunity by filing a federal complaint, Skelton, 390 F.3d at
618, or a proof of claim in a bankruptcy action. Ga. Dep't of Rev. v. Burke,
146 F.3d 1313, 1319–20 (11th Cir.1998). In contrast, a state does not waive
its immunity by entering a general appearance or by defending a case in
federal court so long as it asserts its Eleventh Amendment sovereign
immunity defense in a timely manner. Union Elec. Co. v. Mo. Dep't of
Conservation, 366 F.3d 655, 659–60 (8th Cir.2004).

United States v. Metropolitan St. Louis Sewer Dist., 578 F.3d 722, 725 (8th Cir. 2009).
In Beaulieu, the Second Circuit stated:
There has, however, been some confusion in the Circuit Courts as to the
meaning of Lapides, and its impact on cases in which a state that has not
previously waived its general immunity to a private action voluntarily
removes the action to federal court, presumptively waiving its Eleventh
Amendment immunity. Our court has not directly ruled on the question. Six
Circuits that have expressly considered the question have concluded that a
state defendant's voluntary removal of a private suit to federal court does
not by itself waive the state's general immunity from such a suit. See Stroud
v. McIntosh, 722 F.3d 1294, 1302 (11th Cir.2013) (“We do not understand
Lapides to require the state to forfeit an affirmative defense to liability simply
because it changes forums.”); Bergemann, 665 F.3d at 342 (“Rhode
Island's sovereign immunity defense is equally as robust in both the state
and federal court. Consequently, there is nothing unfair about allowing the
state to raise its immunity defense in the federal court after having removed
the action. Simply put, removal did not change the level of the playing
field.”); Lombardo v. Pa. Dep't of Pub. Welfare, 540 F.3d 190, 198 (3d
Cir.2008) (“We hold that while voluntary removal waives a State's [Eleventh
Amendment] immunity from suit in a federal forum, the removing State
retains all defenses it would have enjoyed had the matter been litigated in
state court, including immunity from liability.”); *488 Meyers ex rel. Benzing
v. Texas, 410 F.3d 236, 255 (5th Cir.2005) (“[W]hen Texas removed this
case to federal court it voluntarily invoked the jurisdiction of the federal
courts and waived its [Eleventh Amendment] immunity from suit in federal
court. Whether Texas has retained a separate immunity from liability is an
issue that must be decided according to that state's law.” (citation omitted));
Stewart, 393 F.3d at 490 (“North Carolina had not consented to suit in its
own courts for the relevant claims.... Therefore, by removing the case to
federal court and then invoking sovereign immunity, North Carolina did not
seek to regain immunity that it had abandoned previously. Instead, North
Carolina merely sought to have the sovereign immunity issue resolved by a
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federal court rather than a state court.” (citations omitted)); Watters v.
Washington Metro. Transit Auth., 295 F.3d 36, 39, 42 n. 13 (D.C.Cir.2002)
(holding that an entity created by inter-state compact, which enjoyed
immunity from suit to enforce attorney's liens in the compactors' own courts,
did not waive that immunity by removal to federal court).
Beaulieu v. Vermont, 807 F.3d 478, 487–88 (2d Cir. 2015).1

1

See Grothhoff v. Nixon, the Court stated:

“Plaintiff misreads Lapides. First, the Court specifically stated that it was
limiting its holding “to the context of state-law claims, in respect to which the State
has explicitly waived immunity from state-court proceedings.” Lapides, 535 U.S. at
617. That clearly means the holding is limited to cases where sovereign immunity
has been waived. The Court went on to say that it did not need to “address the
scope of waiver by removal in a situation where the State's underlying sovereign
immunity [emphasis added] from suit has not been waived or abrogated in state
court.” Id. at 618. Thus, the Court did not hold that removal of a federal claim from
state court to federal court constituted a waiver of the underlying sovereign
immunity. It was simply not an issue in the case.” . . . “The cases holding that
removal waives Eleventh Amendment immunity deal with the forum in which the
case is to be heard, and the unfairness that would ensue if a case that could be
heard in state court was subsequently dismissed in federal court because of the
Eleventh Amendment. The cases do not address sovereign immunity or hold that
a state defendant, by removing the case to federal court, loses a defense (other
than the forum) that would be valid in the state court. For example, in Lapides, the
Court concluded that removal waived an “otherwise valid objection to litigation of
a matter (here of state law) in a federal forum” [emphasis added] for “Eleventh
Amendment purposes.” Lapides, 535 U.S. at 624.
Grothhoff v. Nixon, 2007 WL 2693835 *1-2 (W.D. Mo. September 10, 2007).
In Belkin, the Court stated:
The Eighth Circuit has yet to resolve whether a defendant waives immunity
on a federal claim by the simple act of removing to federal court, and other circuits
are split on this issue. See, e.g., Bd. or Regents of Univ. of Wis. Sys. V. Phx. Int'l
Software, Inc., 653 F.3d 448, 461 (7th Cir.2011) (describing the application of
Lapides to all instances of removal as “the proper result”); Bergemann v. R .I. Dep't
of Envtl. Mgmt., 665 F.3d 336, 342 (1st Cir.2011) (“[T]here is nothing unfair about
allowing the state to raise its immunity defense in federal court after having
removed the action. Simply put, removal did not change the level of the playing
field.”).
On more than one occasion, however, this Court has held Lapides does not
extend to situations where, as here, the defendant did not waive immunity at the
state level. See, e.g., Lacy v. Gray, No. 4:13CV370 RWS, 2013 WL 3766567, at
*3 (E.D.Mo. July 16, 2013); Johnson v. Bd. of Police Comm'rs, No.4:06CV 605
CDP, 2007 WL1629909, at * *3–4 (E.D. Mo. June 4, 2007). Aside from these wellreasoned decisions, the Court is persuaded by the cogent opinions of other
circuits; if removal to federal court amounted to a waiver of immunity per se,
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a state with a colorable immunity defense to a federal claim brought
against it in its own courts would face a Morton's Fork: remove the
federal claim to federal court and waive immunity or litigate the
federal claim in state court regardless of its federal nature. Either
way, the state would be compelled to relinquish a right: either its right
to assert immunity from suit or its ‘right to a federal forum[.]’
Bergemann, 665 F.3d at 342 (quoting Martin v. Franklin Capital Corp., 546 U.S.
132, 140 (2005)). Therefore, the Court concludes MSHP has not waived Eleventh
Amendment immunity through the simple act of removing to federal court, because
under the facts of this case, the “narrow holding of Lapides ” does not apply.
Watters v. Wash. Metro. Area Transit Auth., 295 F.3d 36, 42 n. 13 (D.C.Cir.2002).
The Court will dismiss Counts VII and VIII without prejudice.
Belkin v. Casino One Corp., 4:14CV00452 ERW, 2014 WL 1727896 *3-4 (E.D. Mo.
May 1, 2014)
In Nelson, the Court indicates:
The Court is not aware of any clear precedent from the Eighth Circuit Court
of Appeals on this question. The ADC and Warden Banks identify one decision
from a district court within the Eighth Circuit rejecting Ms. Nelson's proposed
expansion of the Court's holding in Lapides. Grothoff v. Nixon, No. 04-4290-CV-CWAK, 2007 WL 2693835, at *2 (W.D. Mo. Sept. 10, 2007). Furthermore, at least
seven circuits have found that removal does not constitute waiver of sovereign
immunity where the State's underlying sovereign immunity from suit has not been
waived or abrogated in state court. See Bergemann v. Rhode Island Dep't of Envtl.
Mgmt., 665 F.3d 336, 342 (1st Cir. 2011); Beaulieu v. Vermont, No. 13-4198-CV,
2015 WL 5438725, at *10 (2d Cir. Sept. 16, 2015); Lombardo v. Pa. Dep't of Pub.
Welfare, 540 F.3d 190, 198 (3d Cir. 2008); Stewart v. N. Carolina, 393 F.3d 484,
490 (4th Cir. 2005); Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 255 (5th Cir.
2005); Stroud v. McIntosh, 722 F.3d 1294, 1302 (11th Cir. 2013); Watters v.
Washington Metro. Transit Auth., 295 F.3d 36, 39, 42 n. 13 (D.C. Cir. 2002).
Ms. Nelson's reliance on Phoneix, Embury, and Estes is misplaced.
Recently, the Second Circuit Court of Appeals addressed this exact argument,
where the plaintiff cited to these very cases and argued that they “hold that a state's
voluntary participation in federal court litigation constitutes a waiver of the state's
general sovereign immunity.” Beaulieu v. Vermont, No. 13-4198-CV, 2015 WL
5438725, at *8 (2d Cir. Sept. 16, 2015). The Second Circuit Court of Appeals found
that plaintiff's understanding of these opinions was:
[A] misreading of the law of the relevant circuits, all of which adhere
to the generally accepted proposition that a state defendant's
removal of an action to federal court waives the state's objection,
based on the Eleventh Amendment, to the exercise of federal
jurisdiction, but do not subscribe to the proposition advocated by
Plaintiffs that by such removal the defendants also waive the state's
general sovereign immunity.
Id. The Second Circuit's analysis of the law in the Seventh, Ninth, and Tenth
Circuits is persuasive, and the Court adopts it as its own. Id. at *8–10. The ADC
7

The Court agrees that defendant is entitled to summary judgment under the law.
The defendant has not clearly abrogated its sovereign immunity, and there is no waiver
of the underlying immunity in state court. To the extent that plaintiff contends defendant
waived its sovereign immunity by removing to this Court, the Court likewise finds such
removal is not a clear abrogation or waiver of its rights. See e.g., Kruger v. Nebraska,
820 F.3d 295, 301 (8th Cir. 2016) (the fact that the defendants' removal of this case to
federal court may have waived their Eleventh Amendment immunity from suit in federal
court with respect to any state law claims for which the state had waived immunity in state
court does not necessarily mean they waived their other immunities, including sovereign

and Warden Banks's decision to remove this case does not constitute a waiver of
their general sovereign immunity.
Nelson v. Banks, 2016 WL 5496406 *6 (E.D. Ark. Sept. 28, 2016).
The court in Agrawal indicated:
The district court properly determined that Agrawal's breach-of-contract claim was
a “retrospective claim for damages” and that Defendants had not waived immunity
by voluntarily removing the case to federal court. Although Agrawal cites Lapides
v. Board of Regents of University System of Georgia, 535 U.S. 613, 122 S.Ct.
1640, 152 L.Ed.2d 806 (2002), which held that the defendants (state university
officials) waived Georgia's sovereign immunity from state law claims by voluntarily
removing plaintiff's case against them to federal court, Lapides is limited to state
law claims for which the state has waived or abrogated its immunity from damages
claims in the state trial courts. See Dantz v. Am. Apple Group, LLC, 123 Fed.Appx.
702, 706–07 (6th Cir.2005) (unpublished) (Lapides “was limited to the context of
state-law claims, in respect to which the State has explicitly waived immunity from
state-court proceedings”); see also, Indep. Living Ctr. of S. Cal., Inc. v. Maxwell–
Jolly, 572 F.3d 644, 661 (9th Cir.2009) (holding that a state that consents to suit in
state court cannot invoke a sovereign immunity defense after removing the suit to
federal court); Stewart v. N. Carolina, 393 F.3d 484, 488 (4th Cir.2005). Because
that is not the case here, Defendants' removal from state court does not constitute
a waiver of sovereign immunity on the state-law contract claim against UC. That
claim was properly dismissed.
Agrawal v. Montemagno, 574 Fed. Appx. 570, 573 (6th Cir. 2014).

8

immunity). The Court will grant this motion for partial summary judgment, as there is no
waiver of immunity by Nebraska.
The only remaining claim is a state law claim under the state age discrimination
statutes. The Court declines to retain jurisdiction over that claim. 28 U.S.C.A § 1367
(“The district courts may decline to exercise supplemental jurisdiction over a claim under
subsection (a) if-- (3) the district court has dismissed all claims over which it has original
jurisdiction.”)
THEREFORE, IT IS ORDRED THAT:
1. Defendant’s motion for partial summary judgment, Filing No. 16, is granted and
the federal Age Discrimination in Employment Act claim is dismissed.
2. The remainder of the case is remanded to the District Court of Lancaster
County, Nebraska for further processing of the state law age discrimination
claims.
3. The clerk’s office is directed to mail a certified copy of this order of remand to
the clerk of the District Court of Lancaster County, Nebraska.
4. The parties shall bear their own costs.
5. A separate judgment will be entered.

Dated this 18th day of December, 2018.

BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

9