Crumpacker v. Kansas, Department of Human Resources

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 8 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

JILL M. CRUMPACKER,

Plaintiff-Appellee,
No. 02-3197
v.

STATE OF KANSAS, DEPARTMENT
OF HUMAN RESOURCES,

Defendant-Appellant.

Appeal from the United States District Court
for the District of Kansas
(D.C. No. 00-CV-4044-RDR)

Deborah J. Blakely, White, Allinder, Graham & Buckley, L.L.C., Independence,
Missouri (Gene P. Graham, Jr., Mary Beth Compton, White, Allinder, Graham &
Buckley, L.L.C., Independence, Missouri; Timothy W. Monsees, Monsees, Miller,
Mayer, Presley & Amick, Kansas City, Missouri, on the brief), for Plaintiff-
Appellee.

Deanne Watts Hay (Stanley R. Parker, with her on the briefs), Parker & Hay,
L.L.P., Topeka, Kansas, for Defendant-Appellant.

Before MURPHY, BALDOCK, and HARTZ, Circuit Judges.

MURPHY, Circuit Judge.
I. INTRODUCTION

Plaintiff, Jill Crumpacker, filed this suit against her former employer, the

State of Kansas (the “State”), under Title VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000e–2000e-17, alleging gender discrimination and retaliation. The

State moved for summary judgment, arguing, in part, that it was immune from suit

under the Eleventh Amendment. The district court granted the State’s motion as

to one of Crumpacker’s retaliation claims and denied the State’s motion as to the

remaining claims. The State filed an interlocutory appeal of the Eleventh

Amendment immunity issue and other issues raised in its motion for summary

judgment.

This court has jurisdiction over the Eleventh Amendment immunity issue

and exercises pendent jurisdiction over the issue of whether a retaliation claim

can be maintained when the plaintiff has only a subjective good-faith belief that

the underlying conduct violated Title VII. Puerto Rico Aqueduct & Sewer Auth.

v. Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993); Timpanogos Tribe v. Conway,

286 F.3d 1195, 1200 (10th Cir. 2002). This court affirms the district court’s

denial of the State’s motion for summary judgment, concluding that Congress

properly abrogated the states’ Eleventh Amendment immunity from Title VII

retaliation claims predicated on a reasonable good-faith belief that the complained

of activity violated Title VII.

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II. BACKGROUND

From August 1996 through September 1998, Crumpacker was employed as

the Director of Employment and Training of the Kansas Department of Human

Resources. On August 21, 1998, Crumpacker wrote a thirteen-page letter to the

Kansas Secretary of Human Resources, Wayne Franklin, (the “Franklin letter”) in

response to two meetings she had with Franklin regarding her job performance.

In this letter, Crumpacker complained of the way she was being treated at work

and made reference to her gender twice. She stated, “As your only female

division director, I have worked exceedingly hard during the past two years to ‘fit

in with the guys.’” Crumpacker further stated:

With respect to the meetings of July 20 and 22, 1998, and your letter
of July 22, 1998, the statements that I am or have ever acted to
undermine either Roger Aeschliman or A.J. Kotich are untrue. What
is true is that both Roger and A.J. appear to have difficulty treating
me as an equal Executive Team member, either for personal reasons
or because I am a woman.

In September 1998, Crumpacker was terminated. Following her

termination, Crumpacker filed a charge of discrimination with the Equal

Employment Opportunity Commission (“EEOC”) and received a right to sue

letter. Subsequently, Crumpacker brought this suit against the State alleging

claims of gender discrimination and retaliation.

The State moved for summary judgment on the grounds that: (1)

Crumpacker was not an “employee” under Title VII and (2) Crumpacker failed to

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show that she engaged in activity protected under Title VII for which she was

terminated or otherwise disciplined. At the hearing on the motion, the State

argued that it was entitled to summary judgment on the grounds that

Crumpacker’s claims were barred by the Eleventh Amendment. Because the State

did not raise the issue of Eleventh Amendment immunity in its initial brief on its

motion for summary judgment, the district court permitted the State and

Crumpacker to file supplemental briefs on the issue. At the conclusion of the

hearing, the district court informed the parties that it would consider the issue of

Eleventh Amendment immunity prior to ruling on the motion.

Without discussing the issue of Eleventh Amendment immunity, the district

court denied the State’s motion with respect to Crumpacker’s gender

discrimination claims, concluding Crumpacker was an “employee” under Title VII

and that a genuine issue of material fact existed concerning whether the State

discriminated against Crumpacker on the basis of gender. The district court also

denied summary judgment on Crumpacker’s retaliation claim pertaining to her

termination after writing the Franklin letter, 1 reasoning that the State waived its

1
Crumpacker’s retaliation claim is premised on opposition conduct. See 42
U.S.C. § 2000e-3(a) (designating as an unlawful employment practice
discrimination against an individual “because he has opposed any practice made
an unlawful employment practice by this subchapter, or because he has made a
charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter”).

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arguments on the merits of Crumpacker’s claim by failing to assert them in the

initial brief. 2

On appeal, the State argues, inter alia, that the Eleventh Amendment bars

Crumpacker’s suit because: (1) Congress did not abrogate the states’ sovereign

immunity from Title VII retaliation claims and (2) even if Congress abrogated the

states’ sovereign immunity from such claims, it did not do so for retaliation

claims based solely on a plaintiff’s subjective good-faith belief that the

complained of activity is prohibited under Title VII.

II. DISCUSSION

A. Interlocutory Appellate Jurisdiction

While this court typically has jurisdiction only over final decisions of the

district court, it may consider appeals of interlocutory orders falling within the

collateral order doctrine. Stewart v. Oklahoma, 292 F.3d 1257, 1259 (10th Cir.

2002). Under the collateral order doctrine, an otherwise interlocutory order may

be reviewed if it “fall[s] in that small class which finally determine claims of

right separable from, and collateral to, rights asserted in the action, too important

to be denied review and too independent of the cause itself to require that

2
The district court granted the State summary judgment on Crumpacker’s
retaliation claim premised on a complaint she made to the State regarding
inappropriate computer usage by a co-worker, reasoning that Crumpacker did not
have a subjective good-faith belief that the complained of conduct violated Title
VII. This ruling is not at issue on appeal.

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appellate consideration be deferred until the whole case is adjudicated.” Puerto

Rico Aqueduct, 506 U.S. at 143 (quotation omitted); Timpanogos Tribe, 286 F.3d

at 1999. The Supreme Court has held that the denial of a state’s claim to

Eleventh Amendment immunity falls within the collateral order doctrine. Puerto

Rico Aqueduct, 506 U.S. at 147. Therefore, the district court’s denial of the

State’s claim to Eleventh Amendment immunity is immediately appealable. 3

In addition to the Eleventh Amendment immunity issue, the State appeals

other various issues raised in its motion for summary judgment, including: (1)

whether Crumpacker is an “employee” under Title VII 4; (2) whether a plaintiff

3
The district court did not expressly rule on the Eleventh Amendment issue
in its order partially denying the State’s motion for summary judgment. While the
State failed to raise Eleventh Amendment immunity in its briefs in support of its
motion, the State raised this issue at the motion hearing. Further, the district
court provided the parties with an opportunity to submit supplemental briefs and
indicated that it would consider the issue in ruling on the State’s motion. Because
the issue of Eleventh Amendment immunity was properly raised, this court has
jurisdiction to consider the issue in this appeal. Stewart v. Oklahoma, 292 F.3d
1257, 1260 (10th Cir. 2002) (holding that the district court’s failure to address the
issue of Eleventh Amendment immunity is an implicit denial of the defendant
state’s claim to Eleventh Amendment immunity).
4
The State argues that the determination of whether Crumpacker is an
“employee” under Title VII involves an issue of Eleventh Amendment immunity.
Specifically, the State argues that because it is ambiguous whether she is an
“employee,” the Eleventh Amendment bars her suit. The only support the State
provides for this argument is the Supreme Court’s decision in Gregory v.
Ashcroft, 501 U.S. 452, 461-62 (1991). In Gregory, Missouri state court judges
brought claims under the Age Discrimination in Employment Act of 1967
(“ADEA”) challenging a provision of the Missouri Constitution which mandated
retirement of state judges at the age of seventy years. Id. at 455. The Court noted
that decisions regarding the qualification and regulation of state judges are

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may maintain a retaliation claim based on a purely subjective good-faith belief

that the complained of activity violated Title VII; and (3) whether Crumpacker

presented sufficient evidence to support her retaliation claim. The district court’s

resolution of these issues, however, does not decide questions separate from the

merits, and is neither conclusive nor effectively unreviewable on appeal from

final judgment. Timpanogos Tribe, 286 F.3d at 1200. Therefore, these issues do

not warrant an interlocutory appeal in their own right.

This court, however, may exercise pendent appellate jurisdiction over

otherwise nonappealable decisions that are “inextricably intertwined with the

appealable decision” or require review to provide a meaningful analysis of the

typically within the control of the states and that such “decision[s] [are] of the
most fundamental sort for a sovereign entity.” Id. at 460. The Court reasoned
that because “[c]ongressional interference with [such] decision[s] . . . would upset
the usual constitutional balance of federal and state powers,” Congress “should
make its intention clear and manifest if it intends to pre-empt the historic powers
of the States.” Id. at 460-61 (quotation omitted). The aspect of sovereignty at
issue in Gregory was the states’ ability to determine the qualifications of state
judges. Id. The Gregory court reasoned that by determining whether state judges
as a class were “employees” under the ADEA, it “may avoid a potential
constitutional problem.” Id. at 464. In this interlocutory appeal where the State
raises only an Eleventh Amendment challenge, the aspect of sovereignty at issue
is the states’ immunity from suit in federal court. This context is wholly different
from that in Gregory. The issue of congressional intent has already been decided
by the Supreme Court in an Eleventh Amendment context. In Fitzpatrick v.
Bitzer, the Court held that Congress clearly expressed an intent to abrogate the
states’ Eleventh Amendment immunity from Title VII claims. 427 U.S. 445, 449
n.2 (1976). Therefore, unlike the Court in Gregory, this court need not address
the issue of whether Crumpacker is an “employee” under Title VII in an attempt
to avoid a “potential constitutional problem.” Gregory, 501 U.S. at 464.

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appealable decision. Id. (quotation omitted). On appeal, the State argues that the

states’ Eleventh Amendment immunity has not been abrogated for Title VII

retaliation claims based only on the plaintiff’s subjective good-faith belief that

the complained of conduct violated Title VII. In order to resolve the appealable

Eleventh Amendment claim, this court must address whether a Title VII

retaliation claim may be maintained on the plaintiff’s subjective good-faith belief

alone. Therefore, the determination of whether a Title VII retaliation claim may

be maintained on a subject good-faith belief is inextricably intertwined with the

appealable Eleventh Amendment claim and review of this issue is necessary to

analyze the State’s Eleventh Amendment claim in a meaningful way. See Moore

v. City of Wynnewood, 57 F.3d 924, 930 (10th Cir. 1995) (holding that a claim is

“inextricably intertwined with a properly reviewable claim on collateral appeal

only if the pendent claim is coterminous with, or subsumed in, the claim before

the court on interlocutory appeal”).

In sum, this court has appellate jurisdiction over the interlocutory appeal of

the State’s claim of Eleventh Amendment immunity. Moreover, this court

exercises pendent appellate jurisdiction to determine whether a plaintiff may

maintain a retaliation claim based on a subjective good-faith belief that the

complained of conduct violated Title VII.

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 B. Eleventh Amendment Immunity

This court reviews de novo the district court’s denial of a state’s claim to

Eleventh Amendment immunity. Lewis v. N.M. Dep’t of Health, 261 F.3d 970,

975 (10th Cir. 2001); Stewart, 292 F.3d at 1260.

The Eleventh Amendment guarantees “that nonconsenting States may not

be sued by private individuals in federal court.” Bd. of Trs. of the Univ. of Ala. v.

Garrett, 531 U.S. 356, 363 (2001). Congress, however, may abrogate Eleventh

Amendment immunity “when it both unequivocally intends to do so and act[s]

pursuant to a valid grant of constitutional authority.” Id. (quotation omitted).

Congress’ power to abrogate the states’ Eleventh Amendment immunity arises

under § 5 of the Fourteenth Amendment. Nev. Dep’t of Human Res. v. Hibbs, 123

S. Ct. 1972, 1976 (2003). In exercising its authority under § 5, Congress may “do

more than simply proscribe conduct that [has been] held unconstitutional.” Id. at

1977. Congress’ authority extends to providing remedies and to deterring

violations of rights guaranteed by the Fourteenth Amendment “by prohibiting a

somewhat broader swath of conduct, including that which is not itself forbidden

by the Amendment’s text.” Id. (quotation omitted). Therefore, “Congress may

enact so-called prophylactic legislation that proscribes facially constitutional

conduct, in order to prevent and deter unconstitutional conduct.” Id.

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 In Fitzpatrick v. Bitzer, the Supreme Court held that Congress, by amending

Title VII in 1972 to include state and local governments as “employers,”

expressed a clear intention to abrogate the states’ Eleventh Amendment immunity.

427 U.S. 445, 449 n.2 (1976). The State argues, however, that the Court has not

resolved whether Congress acted within its § 5 authority when it enacted the Title

VII retaliation provisions and that the enactment of the retaliation provisions was

an improper exercise of Congressional authority.

Legislation properly enacted under § 5 may not “attempt to substantively

redefine the States’ legal obligations.” Hibbs, 123 S. Ct. at 1977 (quotation

omitted). Moreover, such “legislation must exhibit congruence and

proportionality between the injury to be prevented or remedied and the means

adopted to that end.” Id. at 1978 (quotation omitted). In examining whether

legislation is congruent and proportional, the courts consider “whether Congress

had evidence of a pattern of constitutional violations on the part of the States.”

Id.

In Nevada Department of Human Resources v. Hibbs, the Supreme Court

analyzed whether Congress acted within its authorized § 5 power when it

abrogated the states’ Eleventh Amendment immunity through the Family Medical

Leave Act’s (“FMLA”) family-leave provision. Id. at 1977. In determining

whether the family-leave provision exhibited congruence and proportionality, the

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Hibbs Court focused on the principle that gender-based classifications are

subjected to heightened scrutiny. Id. at 1978. The Court reasoned that “[b]ecause

the standard for demonstrating the constitutionality of a gender-based

classification is more difficult to meet than our rational-basis test . . . it [is] easier

for Congress to show a pattern of state constitutional violations.” Id. at 1982.

The legislative record before Congress when it enacted the 1972

amendments to Title VII indicates that Congress identified a pattern of

employment discrimination based on gender by the states. In enacting the 1972

amendments to Title VII, Congress noted that “discrimination against minorities

and women continue[d]” after the passage of the Civil Rights Act of 1964. H.R.

Rep. No. 92-238 (1972), reprinted in 1972 U.S.C.C.A.N. 2137, 2139. Congress

relied on several studies showing that women were employed in “less challenging,

. . . less responsible and . . . less remunerative positions on the basis of their sex

alone,” and statistical data demonstrating that women were economically

disadvantaged as a class to conclude that women workers suffered from

discriminatory treatment. Id. at 2140-41. Moreover, Congress was apprised of

the problems of gender discrimination on the part of states through its

consideration of the Equal Rights Amendment and the Educational Opportunity

Act. See Okruhlik v. Univ. of Ark., 255 F.3d 615, 625 (8th Cir. 2001) (noting that

Congress “held extensive hearings and received numerous reports detailing racial

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and gender discrimination by the states which were relevant” to the 1972

amendments to Title VII, the Equal Rights Amendment, and the Education

Opportunity Act). Therefore, the legislative record demonstrates an identified

history and pattern of unconstitutional gender-based employment discrimination

by the states. Nanda v. Bd. of Trs. of the Univ. of Ill., 303 F.3d 817, 830-31 (7th

Cir. 2002) (holding that Congress identified a history and pattern of

unconstitutional employment discrimination on the basis of gender by the states);

Okruhlik, 255 F.3d at 625 (same).

The State argues that, while Congress may have identified a pattern of

unconstitutional gender discrimination by the states, it failed to identify a pattern

of retaliatory conduct by the states. This court, however, need not “pars[e] the

legislative findings with regard to Title VII” as finely as the State suggests.

Warren v. Prejean, 301 F.3d 893, 899 (8th Cir. 2002). Lack of evidence in the

legislative history of particular instances of retaliatory conduct is not dispositive

of whether Congress properly exercised its authority under § 5 in enacting the

retaliation provision of Title VII. Id. To properly enact legislation under its § 5

authority, Congress need not identify a pattern of each form of gender

discrimination in the workplace by the states. Cf. Garrett, 531 U.S. at 368.

Rather, Congress need only identify a history and pattern of unconstitutional

behavior on the part of states. Fla. Prepaid Postsecondary Educ. Expense Bd. v.

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Coll. Sav. Bank, 527 U.S. 627, 645-46 (1999). Here, Congress clearly identified a

pattern of unconstitutional employment discrimination on the basis of gender by

the states.

In addition to identifying such a pattern of unconstitutional discrimination,

Congress also identified the lack of an “effective forum to assure equal

employment” for state employees. H.R. Rep. No. 92-238 (1972), reprinted in

1972 U.S.C.C.A.N. 2137, 2152-53. By enacting the retaliation provision,

Congress ensured that state employees could utilize the protections of Title VII by

reporting instances of discrimination without the fear of retaliatory conduct.

Given the evidence of gender discrimination by the states and Congress’

recognition that state employees did not have an “effective forum to assure equal

employment,” Congress acted within its § 5 authority to enact necessary

prophylactic legislation to remedy the identified pattern of gender discrimination.

The retaliation provision of Title VII is, therefore, congruent and proportional to

the identified constitutional injury to be remedied. Because Congress identified a

pattern and history of gender discrimination by the states and because the

retaliation provision is congruent and proportional to this identified constitutional

injury, Congress properly exercised its § 5 authority in enacting the retaliation

provision of Title VII.

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 The State, however, goes on to argue that, even assuming Congress

properly abrogated the states’ Eleventh Amendment immunity from the retaliation

claims under Title VII, it did so only with respect to those claims which are based

on actual violations of Title VII. Therefore, the State argues, to the extent

Crumpacker’s retaliation claim is based only on her subjective good-faith belief

that the underlying conduct violated Title VII, the State is immune from suit.

To address the State’s argument, this court must first decide whether a

plaintiff may maintain a retaliation claim based on a subjective good-faith belief

that the challenged conduct violated Title VII. In Love v. RE/MAX of Am., Inc.,

this court held that a plaintiff can maintain a retaliation claim “based on a

mistaken good faith belief that Title VII has been violated.” 738 F.2d 383, 385

(10th Cir. 1984). Subsequently, in Jeffries v. Kansas, this court held that “a

plaintiff may maintain an action for retaliation based on participation in a

protected proceeding regardless of whether the conduct forming the basis of her

underlying complaint is adjudged to violate Title VII.” 147 F.3d 1220, 1231

(10th Cir. 1998). The Jeffries court also cited with approval the First Circuit’s

interpretation of the participation clause of Title VII as not “requiring that the

charges be valid, nor even . . . implied[ly] requir[ing] that they be reasonable.”

Id. (quotation omitted). In a recent unpublished disposition, this court has

suggested that Jeffries allows plaintiffs to maintain retaliation claims premised on

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statutory opposition conduct which in turn are based on an unreasonable good-

faith belief that Title VII was violated. Shinwari v. Raytheon Aircraft Co., No.

98-3324, 2000 WL 731782, at *5 (10th Cir. June 8, 2000). Under an expansive

reading of Jeffries, plaintiffs may maintain retaliation claims based on an

unreasonable subjective good-faith belief that the opposed conduct violated Title

VII.

The Supreme Court, however, recently rejected by implication any

interpretation of Title VII that would permit plaintiffs to maintain retaliation

claims based on an unreasonable good-faith belief that the underlying conduct

violated Title VII. Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 269 (2001).

In Clark, the Supreme Court reversed the Ninth Circuit and upheld the dismissal

of an employee’s retaliation claim, concluding that “no one could reasonably

believe that the incident violated Title VII.” Id. Under the Ninth Circuit’s

interpretation of Title VII, a plaintiff could state a retaliation claim based on a

reasonable good-faith belief that the underlying conduct violated Title VII. Id.

While the Clark Court did not address the propriety of the Ninth Circuit’s

interpretation of the Title VII retaliation provision, the Court did implicitly reject

any interpretation of Title VII which would permit a plaintiff to maintain a

retaliation claim based on an unreasonable good-faith belief that the underlying

conduct violated Title VII. Id. Accordingly, the Supreme Court’s decision in

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Clark supercedes and overrules this court’s prior decisions, to the extent they

interpreted Title VII as permitting retaliation claims based on an unreasonable

good-faith belief that the underlying conduct violated Title VII. See In re Smith,

10 F.3d 723, 724 (10th Cir. 1993) (holding that a decision of a panel of this court

may not be reversed absent en banc reconsideration or a superseding Supreme

Court decision). 5

Finally, the State argues that Congress’ authority under § 5 is limited to

remedying actual constitutional violations. Therefore, the State argues, Congress

did not properly abrogate the states’ Eleventh Amendment immunity for

retaliation claims based only on a reasonable good-faith belief that the underlying

conduct violated Title VII. The Supreme Court, however, has held that Congress

is authorized to enact prophylactic § 5 legislation designed to remedy and deter

discrimination. Hibbs, 123 S. Ct. at 1979. Further, the Court has rejected the

proposition that Congress’ authority under § 5 is limited to proscribing actual

discrimination. Id. at 1983. By permitting plaintiffs to maintain retaliation

5
The State argues that it is ambiguous whether, under Title VII, a
retaliation claim may be based on challenged conduct which does not actually
violate Title VII. Further, the State argues that such ambiguity entitles the State
to Eleventh Amendment immunity. This court, however, has held that an actual
violation is not required to maintain a retaliation claim under Title VII. See Love
v. RE/MAX of Am., Inc., 738 F.3d 383, 385 (10th Cir. 1984). Accordingly,
because there is no ambiguity regarding this issue, the State’s argument lacks
merit.

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claims based on a reasonable good-faith belief that the underlying conduct

violated Title VII, employees are able to report what they reasonably believe is

discriminatory conduct without fear of reprisal. Strong policy supports allowing

plaintiffs to maintain such claims. Robben v. Runyon, No. 98-3177, 2000 WL

123421, at *5 (10th Cir. Feb. 1, 2000) (Murphy, J., concurring). The

determination of what constitutes prohibited conduct under Title VII continually

evolves as “courts continue to struggle with the question of the types of

workplace discrimination and harassment which are prohibited by Title VII.” Id.

If plaintiffs are not protected from retaliation when they challenge conduct that

they have a reasonable good-faith belief is prohibited by Title VII, “the incentives

for asserting otherwise valid claims at the margins of Title VII are drastically

reduced, if not eradicated.” Id. Therefore, Congress is authorized to enact such

prophylactic § 5 legislation to deter gender discrimination in the workplace and

that authorization extends to the prohibition of retaliation even when the

underlying conduct may not constitute a violation of Title VII.

IV. CONCLUSION

For the reasons stated above, this court AFFIRMS the district court’s

denial of the State’s claim to Eleventh Amendment immunity.

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