MCDONNELL v. NEW JERSEY TRANSIT RAIL OPERATIONS

Filing 59

OPINION Signed by Judge Katharine S. Hayden on 6/16/21. (cm, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
BRIAN J. McDONNELL,
Plaintiff,

Civil No.: 17-7698 (KSH) (CLW)

v.
NEW JERSEY TRANSIT RAIL
OPERATIONS,

OPINION

Defendant.
Katharine S. Hayden, U.S.D.J.
Brian J. McDonnell has sued his employer, New Jersey Transit Rail
Operations (hereafter “NJT”), on the basis of age discrimination and retaliation
under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621
et seq., and the New Jersey Law Against Discrimination (“NJLAD”), N.J.S.A.
10:5-1 et seq. NJT moves to dismiss the federal claims and asks the Court to
decline to exercise supplemental jurisdiction.
This is a renewed motion by NJT. Shortly after McDonnell filed a twocount complaint on September 29, 2017 seeking redress under the ADEA and
unspecified state law claims (D.E. 1), NJT moved to dismiss the federal claim on
sovereign immunity grounds (D.E. 5). McDonnell filed an amended complaint
(D.E. 9), asserting discrimination and retaliation under the ADEA (Counts One and
Two) and discrimination and retaliation under NJLAD (Counts Three and Four).
NJT again moved to dismiss the ADEA counts. (D.E. 10.) While that motion was
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pending, then Chief Judge Linares issued a district-wide order (DE 26) staying all
claims against NJT that involved the issue of sovereign immunity, based on Karns
v. Shanahan, 879 F.3d 504, 519 (3d Cir. 2018), pet. for reh’g en banc denied, Nos.
16-2171, 16-2172 (3d Cir. Feb. 20, 2018). After the stay was lifted, the pending
motion was re-filed, and it has been fully briefed. (D.E. 44, 50, 51.) The Court
decides it without oral argument. See L. Civ. R. 78.1.
The Court’s analysis begins with the Third Circuit’s decision explicitly
ruling that “NJ Transit is an arm of the state . . . entitled to claim the protections of
Eleventh Amendment immunity.” Karns, 879 F.3d at 519.1 Armed with that
status, NJT relies on United State Supreme Court precedent in Kimel v. Florida
Board of Regents, 528 U.S. 62, 67 (2000), which held that in passing the ADEA,
Congress did not abrogate states’ sovereign immunity.
Asserting sovereign immunity in this context is not a new phenomenon.
Recently, this Court dismissed with prejudice ADEA claims against NJT in Battle
v. New Jersey Transit Corporation, Civ. No. 19-21247, slip op. (D.N.J. Jan. 28,
2021), D.E. 16. There, the plaintiff failed to file opposition to NJT’s assertion of

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McDonnell does not dispute that newly-passed state legislation eliminating
sovereign immunity when suits against NJT are filed under enumerated statutes
does not apply here. (See D.E. 44-1, Moving Br. 21-22; see generally D.E. 50,
Opp. Br.)
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sovereign immunity, but the Court addressed the substantive issue anyway, relying
on the Supreme Court’s unequivocal and controlling language in Kimel:
We hold . . . that, in the ADEA, Congress did not validly
abrogate the States’ sovereign immunity to suits by private
individuals. 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. Those avenues of relief remain available today,
just as they were before this decision.
Battle, slip op. at 9 (quoting Kimel, 528 U.S. at 91-92).
McDonnell contends this Court nonetheless has jurisdiction because,
according to his brief’s substantive point heading, “NJ Transit Accepts Federal
Funds Conditioned on Compliance with Federal Equal Employment Laws,
Specifically the ADEA.” (Opp. Br. 4.) In effect, McDonnell argues NJT has
waived sovereign immunity. In countering that position, NJT points to a case both
sides agree sets out the appropriate test for exceptions to a State’s sovereign
immunity, Wright v. New Jersey Department of Education, 115 F. Supp. 3d 490
(D.N.J. 2015), and they agree further that the second of the three enumerated
exceptions is the one to examine here.
In Wright, then Chief Judge Simandle identified the exceptions thus:
State sovereign immunity under the Eleventh Amendment
is subject to three exceptions: 1) where Congress
abrogates the state’s immunity pursuant to a valid exercise
of its Fourteenth Amendment power; 2) where a state has
validly waived its sovereign immunity and 3) where
prospective injunctive relief is sought against state
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officials to end continuing or ongoing violations of federal
law.
115 F. Supp. 3d at 494 (citing MCI Telecomm. Corp. v. Bell Atl. Pennsylvania, 271
F.3d 491, 503 (3d Cir.2001)). McDonnell argues that NJT “unequivocally waived
its sovereign immunity” by accepting federal funds (a fact not contested) via a
grant from the Federal Transit Administration (the “FTA”). (Opp. Br. 8.) As an
indication that these funds came with a price – specifically the price of being sued
under the ADEA – McDonnell points to a July 21, 2017 circular the FTA issued as
part of its grant requirements.
The FTA Circular states that the “recipient agrees to comply with all
applicable civil rights statutes and regulations.” (Opp. Br., Ex. B at II-11.) As to
the ADEA, the Circular provides:
The recipient agrees to comply with all applicable
requirements of the Age Discrimination Act of 1975,
as amended, 42 U.S.C. § 6101 et seq., and Health and
Human Services implementing regulations, “Nondiscrimination on the Basis of Age in Programs or
Activities Receiving Federal Financial Assistance,”
45 CFR part 90, which prohibit discrimination
against individuals on the basis of age (40 years or
older). In addition, the recipient agrees to comply
with all applicable requirements of the Age
Discrimination Act (ADEA), 29 U.S.C. §§ 621
through 634, and Equal Employment Opportunity
Commission (EEOC) implementing regulations,
“Age Discrimination in Employment Act” 29 CFR
part 1625, which prohibits discrimination against
individuals on the basis of age.

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(Id. at II-12.)
In his opposition brief, McDonnell asks, appropriately, what
conditions placed on the receipt of FTA funding are “sufficient to waive
immunity[?]” (Opp. Br. 6.) Acknowledging that under controlling
precedent the mere acceptance of federal funding does not constitute a
waiver of sovereign immunity, and that a plaintiff bears “the unequivocal
burden” of establishing waiver, McDonnell relies on the Circular and
concludes:
Here . . . the language of the Circular and 42 U.S.C. §§
6101 & 6102 make clear that the grant of FTA federal
funding is conditioned on compliance with the ADEA,
and NJ Transit agreed to comply when it accepted
approximately $1.5 billion in funding for its Capital
Program. By accepting billions in federal funding from
NJ Transit [sic], which was knowingly conditioned on
compliance with non-discrimination laws and the
ADEA, NJ Transit unequivocally waived its sovereign
immunity in regard to a private ADEA suit brought by
an NJ Transit employee.
(Id. at 8.)
The Court disagrees. In elaborating on the second exception to state
sovereign immunity, i.e., a state’s “valid waiver,” Judge Simandle wrote in
Wright that in the Third Circuit Congress must “state in ‘clear and unambiguous
terms’ in the statute that a waiver of sovereign immunity is a condition of receiving
the gift or gratuity.” 115 F. Supp. 3d at 495. Where receipt of federal funds was
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held to constitute waiver, Judge Simandle pointed out that the text of the governing
statute was unequivocal. In the Third Circuit, he gave the example of M.A. ex rel.
E.S. v. State-Operated School District of City of Newark, where the court found
waiver because the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400
et seq., specifies that “A State shall not be immune under the eleventh amendment
to the Constitution of the United States from suit in Federal court for a violation of
this chapter.” 344 F.3d 335, 346-47 (3d Cir. 2003) (quoting 20 U.S.C. § 1403(a)).
He also cited to Lane v. Pena, 518 U.S. 187 (1996), which concerned the
Rehabilitation Act Amendments of 1986, concluding that statute “waived the
states’ Eleventh Amendment immunity when it contained the following language:
‘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 . . . .’” Wright, 115 F. Supp. 3d at 496 (quoting Lane,
518 U.S. at 198). In contrast, “the ADEA does not contain any ‘clear and
unambiguous’ statement of intent to condition receipt of federal funding upon a
waiver of sovereign immunity – and [Wright] has not pointed to any provision in
the ADEA that expresses such an intent.” Id.
Contrary to the focus on what is in the ADEA in Wright, it appears
that McDonnell is arguing that the source language for the abrogation of
NJT’s sovereign immunity appears by way of what he identifies as

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“conditions” in the FTA Circular. (Opp. Br. 8.) McDonnell
inappropriately elevates the text of the Circular as laying down
“conditions” for receipt when nowhere does the text specify that. His
argument also elevates the FTA to the position of Congress by claiming
that its pronouncements in the Circular have the power actually to abrogate
sovereign immunity.
The FTA’s issuance of the Circular was not an act of Congress. As to
the “conditions” in the grant of funds, the Third Circuit was explicit in MCI
Telecommunication Corp.: “Congress must be unmistakably clear and
unambiguous in stating its intent to condition receipt of the gratuity on the state’s
consent to waive its sovereign immunity and to be sued in federal court.” 271 F.
3d at 506. As the court explained, the “clear and ambiguous” requirement makes
certain that “the states exercise their choice [to receive federal funds] knowingly
and voluntarily, cognizant of the consequence . . . .” Id. (emphasis added).
On whether NJT, as an arm of the state of New Jersey, waived its sovereign
immunity from an ADEA lawsuit by one of its employees by receiving FTA funds,
Congress has not spoken either with a clear voice or at all; and the FTA cannot
“speak.” McDonnell has failed to establish a valid waiver by NJT that would
constitute an exception to its Eleventh Amendment immunity from this lawsuit.
As a consequence, Counts One and Two are dismissed with prejudice. The Court

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declines to exercise supplemental jurisdiction over the claims under NJLAD in the
remaining counts, and the Clerk of the Court is directed to close this case.
/s/ Katharine S. Hayden
Katharine S. Hayden, U.S.D.J.

Date: June 16, 2021

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