IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50092
THERESA M. SILER-KHODR,
Plaintiff-Appellee,
versus
THE UNIVERSITY OF TEXAS HEALTH SCIENCE
CENTER SAN ANTONIO; ET AL.,
Defendants,
and
THE UNIVERSITY OF TEXAS HEALTH SCIENCE
CENTER SAN ANTONIO,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
August 24, 2001
Before POLITZ, DeMOSS, and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:
The University of Texas Health Science Center San Antonio (“UTHSCSA” or the
“University”) appeals from a final judgment awarding Dr. Theresa M. Siler-Khodr (“Siler-Khodr”)
$91,000 back pay and $20,000 of compensatory damages, including costs and prejudgment interest,
because the jury found that UTHSCSA had discriminated against Siler-Khodr on the basis of her
gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (“Title VII”) and
paid her unequally in violation of the Equal Pay Act, 29 U.S.C. § 206(d) (“Equal Pay Act” or
“EPA”). For the following reasons, we affirm the judgment.
FACTUAL & PROCEDURAL BACKGROUND
Siler-Khodr began her career at UTHSCSA in the Department of Obstetrics and Gynecology
(“Ob/Gyn Department”) as an assistant professor in 1976. She has a Ph.D. in biochemistry, and she
is a reproductive endocrinologist specializing in the area o f hormones involved with the female
reproductive system. Siler-Khodr primarily conduct s laboratory research in this field. She also
publishes the results of her research, supervises Fellows, and teaches classes. She has also directed
clinical and research laboratories. Siler-Khodr became a Full Professor with tenure in 1986, and her
supervisor is Dr. Robert Schenken (“Schenken”).
Dr. Sydney Shain (“Sydney”) is also in the Depart ment and joined the University in 1989.
According to UTHSCSA, Sydney was hired in an effort to retain Dr. Rochelle Shain (“Rochelle”),
Sydney’s wife and one of the four Ph.D. researchers in the Ob/Gyn Department. Rochelle informed
Dr. Carl Pauerstein (“Pauerstein”), chair of the Department since 1979, that her husband wanted to
leave his job at the Southwest Foundation for Biological Research in San Antonio where he earned
$80,000 per year. Pauerstein offered Sydney a job with the University at a salary of $83,000, in part,
because he was concerned that Sydney would seek employment outside of San Antonio, causing
Pauerstein to lose Rochelle. Siler-Khodr’s salary at the time was $64,354. The University also
justifies Sydney and Siler-Khodr’s difference in pay by asserting that Sydney has been more successful
than Siler-Khodr in obtaining grant funding.
2
The University currently pays Sydney approximately $20,000 per year more than Siler-Khodr.
He, however, like Siler-Khodr, 1) has a Ph.D. in biochemistry; 2) primarily conducts laboratory
research regarding reproductive endocrinology; 3) publishes the results of his research; 4) supervises
departmental Fellows; 5) teaches classes; and 6) is supervised by Dr. Schenken. Similarly, Pauerstein
testified at trial that Siler-Khodr and Sydney have essentially the same duties and responsibilities.
Siler-Khodr filed suit in state district court against UTHSCSA, alleging in part violations of
Title VII and of the EPA. The University subsequently removed to federal court. At trial, Siler-
Khodr presented two studies: 1) the Women’s Faculty Association Report conducted by the
University in 1994 and 2) a report and testimony of Dr. Mary Gray (“Gray”), an expert statistician
and Full Professor of mathematics and statistics at American University, in which she conducted a
multiple regression analysis that controlled for a variety of factors.
Both reports indicated that gender significantly affected faculty salaries at the University.
After adjusting for confounding factors such as rank, degree, tenure, duration in the institution and
age, women tended to earn lower salaries than men. The reports studied salaries university-wide, and
neither of them distinguished faculty salaries among medical specialities. The University contends
that the Women’s Faculty Association report was inherently flawed since, for example, more women
tend to be pediatricians than surgeons at medical schools across the country and at UTHSCSA, and
surgeons make considerably higher salaries than pediatricians. Moreover, UTHSCSA argues that the
report did not analyze salaries within the Ob/Gyn Department and mentioned nothing regarding Siler-
Khodr’s salary. The University also asserts that Gray’s report speaks only to the salary structure
throughout the University. The report does not speak to the Ob/Gy n Department or the medical
school in particular and does not pertain to Siler-Khodr’s individual salary. In response, Siler-Khodr
3
contends that the University offered no expert testimony of its own at trial. Dean James Young
(“Dean Young”), dean of the Medical School, however, testified at trial that he disagreed with the
Women’s Faculty Association study’s conclusion. The University also cross-examined Gray’s report.
A jury subsequently returned a verdict for Siler-Khodr on the issues of sex discrimination
under Title VII and unequal pay under the Equal Pay Act. In addition to ordering back pay in the
amount of $91,000 and compensatory damages in the amount of $20,000, it also ordered the
University to equalize Siler-Khodr’s compensation to that of Sydney and to pay her all sums
necessary to accomplish that equalization retroactive to the date the jury returned the verdict. The
district court further awarded Siler-Khodr an additional $91,000 in liquidated damages in keeping
with the jury’s finding under the Equal Pay Act, as well as reasonable attorneys’ fees. UTHSCSA
moved for a judgment as a matter of law, pursuant to Rule 50(a) o f the Federal Rules of Civil
Procedure, that the district court denied. The University now appeals.
DISCUSSION
I. Rule 50(a) Motion and the Sufficiency of Evidence
Rule 50(a) states that “[i]f during a trial by jury a party has been fully heard on an issue and
there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue,
the court may determine the issue against that party and may grant a motion for judgment as a matter
of law. . . .” FED. R. CIV. P. 50(a). This Court reviews de novo the trial court’s ruling on a Rule
50(a) motion. Travis v. Bd. of Regents of the Univ. of Texas Sys., 122 F.3d 259, 263 (5th Cir. 1997).
Moreover, in reviewing a Rule 50(a) motion, this Court “should review all of the evidence in the
record . . . [but] must draw all reasonable inferences in favor of the nonmoving party, and it may not
make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prod., Inc.,
4
530 U.S. 133, 150 (2000). “Credibility determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the facts are jury functions, not those of a judge.” Id. at 150-51 (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986)).
The district court refused to grant the University’s Rule 50(a) motion for a judgment as a
matter of law on Siler-Khodr’s claims alleging violations of Title VII and the EPA. Title VII states
that it is unlawful “to discriminate against any individual with respect to his compensation . . . because
of such individual’s sex.” 42 U.S.C. § 2000e-2(a). Hence, a Title VII claim alleges “individual,
disparate treatment.” Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1135 (5th Cir. 1983). Because the
facts in a particular Title VII case will differ, the evidence necessary to prove a prima facie case of
discrimination under Title VII will vary. Id. However, this Court has noted that although a plaintiff
may present:
statistics evidencing an employer’s pattern and practice of
discriminatory conduct, which “may be helpful to a determination of
whether” the alleged discriminatory act against the plaintiff
“conformed to a general pattern of discrimination against” members
of a prot ected group. . . . that evidence is “not determinative of an
employer’s reason for the action taken against the individual
grievant.”
Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) and Terrell v. Feldstein
Co., 468 F.2d 910, 911 (5th Cir. 1972)).
In contrast, the EPA has a higher threshold, requiring that an employer not discriminate
“between employees on the basis of sex . . . for equal work on jobs the performance of which requires
equal skill, effort, and responsibility, and which are performed under similar working conditions.”
29 U.S.C. § 206(d)(1). In short, it demands that equal wages reward equal work. Corning Glass
Works v. Brennan, 417 U.S. 188, 195 (1974). Once a plaintiff has made her prima facie case by
5
showing that an employer compensates employees differently for equal work, the burden shifts to the
defendant to “prove by a preponderance of the evidence that the wage differential is justified under
one of the four affirmative defenses set forth in the Equal Pay Act: (1) a seniority system; (2) a merit
system; (3) a system which measures earnings by quantity or quality of production; or (4) any other
factor than sex.” Kovacevich v. Kent State Univ., 224 F.3d 806, 826 (6th Cir. 2000) (citing 29 U.S.C.
§ 206(d)(1)). The EPA’s affirmative defenses have been incorporated into Title VII by the Bennett
Amendment to the Act. Id. at 828. “Generally, [however,] a Title VII claim of wage discrimination
parallels that of an EPA violation.” Id.
A. Statistics
The University contends that the trial court erred when it failed to grant its Rule 50(a) motion
because the evidence was legally insufficient to support the jury’s findings of sex discrimination and
unequal pay. It asserts that the two reports that Siler-Khodr presented regarding gender disparities
in faculty salaries sho wed neither discrimination in the Ob/Gyn Department nor by Pauerstein.
UTHSCSA asserts that Siler-Khodr, therefore, failed to prove intentional discrimination under Title
VII. As supporting authority, the University cites three cases, Zahorik v. Cornell University, 729
F.2d 85, 95 (2d Cir. 1984), Pollis v. New School for Social Research, 132 F.3d 115, 121-23 (2d Cir.
1997) (holding that plaintiff’s statistics did not support an inference of discrimination when the
statistical group was comprised of individuals not fairly comparable to the plaintiff), and this Court’s
recent opinion in Wyvill v. United Co. Life Ins. Co., 212 F.3d 296 (5th Cir. 2000).
The University, however, fails to mention Plemer, a Fifth Circuit case almost directly on point.
Moreover, the cases that UTHSCSA cites are inapposite. First, the Fifth Circuit stated in Plemer,
a case with facts quite similar to those in the instant case, that
6
[i]f an employee establishes by statistics that an employer had a
discriminatory practice or policy toward employees of the claimant’s
gender, the court may infer that the employer’s justification for an
action it took against the plaintiff was merely pretext and that the
action was really taken on the basis of the plaintiff’s gender in
conformance with the general practice of discrimination.
713 F.2d at 1137.
Indeed, this Court stated that the district court should have co nsidered the plaintiff’s statistics as
evidence that rebutted the employer’s evidence that the wage disparity between her and another male
employee for the same position hinged on a “factor other than sex.” Id.
Second, the study in Zahorik did not consider discriminatory wage structures, and the
statistics were limited in numbers, remote in time, based upon the statisticians’ “estimates,” and
reflected a deliberate exclusion from consideration of nearly 50 tenure decisions. Third, Pollis is
distinguishable from the instant case. The petitioner’s statistics in that case failed because her sample
group was too small, consisting of only eight faculty members, and too spread out over time, covering
the years 1974-1993, to be probative of anything. In contrast, both studies that Siler-Khodr
presented analyzed salary data of hundreds of faculty members, university-wide, during a single year.
Fourth, Wyvill may be distinguished because it did not even involve statistics, but anecdotal evidence
of how other individuals had been treated by the employer.
Furthermore, the Supreme Court has specifically addressed the University’s arguments
regarding the regression analysis in Gray’s report. The Court concluded that “[w]hile the omission
of variables from a regression analysis may render the analysis less probative than it otherwise might
be, it can hardly be said, absent some other infirmity, that an analysis which accounts for the major
factors ‘must be considered unacceptable as evidence of discrimination.’” Bazemore v. Friday, 478
7
U.S. 385, 400 (1986) (citation omitted). “Normally, failure to include variables will affect the
analysis’ probativeness, not its admissibility.” Id. (emphasis added). Furthermore, the Court stated
that “[a] plaintiff in a Title VII suit need not prove discrimination with scientific certainty; rather, his
or her burden is to prove discrimination by a preponderance of the evidence.” Id.
Thus, although both reports do not study faculty salaries by medical sub-specialty or study
Pauerstein’s individual conduct, they are sufficient to prove discrimination under a Title VII claim
according to Supreme Court and this Court’s precedent. Moreover, it is noteworthy that the
University failed to present evidence at trial rebutting the conclusions of the reports that Siler-Khodr
presented into evidence. In contrast, Siler-Khodr put forth ample evidence to overcome the Rule
50(a) motion, including her testimony, Gray’s testimony, and the studies themselves. Finally, the
Supreme Court has noted that the inclusion of specific variables does not affect the studies’
probativeness as much as their admissibility. Therefore, regarding the studies in favor of Siler-
Khodr, we hold that the district court did not err in denying the Rule 50(a) motion, given that it is
the province of the jury, not the court, to make credibility determinations regarding the reports.1
Reeves, 530 U.S. at 122.
B. Affirmative Defenses
1. Grant-Obtaining Abilities
1
For the same reasons, the University’s arguments regarding the issue of whether the trial court
erred by admitting into evidence unreliable and irrelevant statistical evidence and therefore abused
its discretion and subst antially prejudiced the University by forcing it to defend allegations of
discrimination against all female faculty in the University, are unpersuasive.
8
The University offered two affirmative defenses at trial to explain the wage differential alleged
in Siler-Khodr’s EPA and Title VII claims: 1) Sydney was more productive in his ability to secure
grants than Siler-Khodr and 2) Pauerstein offered Sydney a higher salary than that of Siler-Khodr as
an incentive to retain his wife, Rochelle, a professor in the department since 1976, based on Sydney’s
prior salary and market forces. With respect to the first affirmative defense, Pauerstein testified at
trial that the single most important criterion he uses to allocate money for raises is success in
obtaining grant funding.2
Siler-Khodr testified at trial that she had brought in $2.8 to $2.9 million in grants over the
course of her tenure at the University as a principal investigator. In contrast, Sydney testified that
he had obtained in excess of $1.9 million in grant money to the University. Pauerstein, however,
testified that the department had attributed $2.9 million in grant funding, all from NIH, to Sydney as
a Principal Investigator (“PI”) during the years 1989-1999. During the period 1975-1999, however,
Pauerstein testified that Siler-Khodr obtained o nly $600,000 in grant funding as a principal
investigator, all from NIH.
Sydney also testified that although he had not obtained any new grant funding since 1995, he
had received raises since that time. Pauerstein testified that he did not recommend a raise for Sydney
in 1999 because he had been unable to receive a grant. Similarly, Pauerstein testified that he did not
recommend Siler-Khodr for a raise in 1999 because her track record in bringing in grant support was
not “excellent,” although she had obtained grant support for that year. In 1991, however, Pauerstein
2
He also stated at trial that grants from the National Institutes of Health (“NIH”) are the most
prestigious grants, as they are peer-reviewed.
9
recommended a raise for Siler-Khodr that was over five percent greater than that which he
recommended for Sydney.3
Siler-Kho dr argues that the University’s grant-obtaining defense is mere pretext for the
discrepancy between her and Sydney’s compensation. She notes, in contrast to Pauerstein’s
testimony regarding the importance of obtaining grants in evaluating salary raises, that Dean Young
wrote in a 1996 letter that “[t]here are no institutionally specified factors to consider as a basis for
determining total annual compensation.” Siler-Khodr also contends that the University presented
neither a campus-wide nor departmental policy showing that this factor had ever been used as a wage-
setting criterion. Although she was informed in her 1996 and 1997 faculty evaluations that she
needed to improve her ability to obtain further grant funding for research studies, there is no evidence
in the record that Siler-Khodr had been criticized in her evaluations for not obtaining sufficient
funding prior to 1996 and 1997. The record also reflects that she had not been informed that she was
paid less because of her purportedly lesser ability to obtain grants.
A review of the record therefore indicates that Siler-Khodr presented sufficient evidence at
trial to support the jury’s finding that the University’s grant-obtaining affirmative defense was pretext
for its paying Siler-Khodr a lower wage than Sydney. We, therefore, hold that the district court did
not err.
3
Pauerstein has recommended Siler-Khodr for merit raises in fifteen out of the seventeen years
that raises were available. Between the years 1991 and 2000, Siler-Khodr received raises that
increased her salary by 28.8% and Sydney received raises that increased his salary by 30%.
10
2. Prior Salary/Market Forces
The trial court similarly did not err when it denied the University’s motion for judgment as
a matter of law because the record shows that UTHSCSA’s affirmative defense to Siler-Khodr’s
claims based on Sydney’s prior salary and market forces is pretext as well and is easily rebutted.
Pauerstein testified that he offered a faculty position to Sydney because he wanted to retain Rochelle
as a member of the Ob/Gyn Department. Sydney testified at trial that his primary reason for
accepting employment at the University was that he had tired of the responsibilities at his job in
private industry and he wanted to pursue academic research. Moreover, although he testified that
there were no negotiations regarding his salary offer with the University, he also testified that had his
salary offer not been in excess of $80,000, he probably would have asked for a higher salary. The
trial court, however, did not err when it adjudged that the evidence was legally sufficient to rebut this
affirmative defense because the record reflects that Sydney’s primary reason for accepting
Pauerstein’s offer was not related to salary.
The University also argues that market forces dictated a higher salary for Sydney. It relies
on the testimony of Dean Young, who stated that the wage differential is justified, given that the
salary paid to a new employee is driven almost entirely by market forces- the University must expend
resources to attract qualified individuals in a market where other organizations have the same goal.
This Court has previously stated that the University’s market forces argument is not tenable and
simply perpetuates the discrimination that Congress wanted to alleviate when it enacted the EPA.
See Brennan v. City Stores, Inc., 479 F.2d 235, 241 n.12 (5th Cir. 1973) (stating that factors other
than sex such as “the tighter market for salesmen and male tailors” does not justify “its hiring of men
with such skills at a rate higher than that paid to obtain women of similar skills”).
11
II. Constitutionality of the EPA
The University asserts that Congress exceeded its authority when it abrogated the states’
Eleventh Amendment immunity in the EPA, in light of the Supreme Court’s recent opinion in Kimel
v. Florida Bd. of Regents, 528 U.S. 62 (2000). Kimel held that the Age Discrimination in
Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621, although containing a clear statement of
Congress’s intent to abrogate state immunity, was not a valid exercise of Congress’s power under
§ 5 of the Fourteenth Amendment to abrogate state immunity and extend liability to the states.
Kimel, 528 U.S. at 78-80. In addition, UTHSCSA argues that Congress not only unconstitutionally
invoked its authority under Article I to abro gate state immunity, but it also lacked authority to
abrogate state immunity under § 5 because Congress failed to find widespread constitutional
violations by the states when it amended the EPA to extend liability to the states in 1974.4 The
University consequently argues that the Act fails the congruence and proportionality test outlined in
City of Boerne v. Flores, 521 U.S. 507, 519-20, 117 S. Ct. 2157, 138 L. Ed. 2d 624 (1997).
This Court reviews de novo the question of whether a state is entitled to immunity under the
Eleventh Amendment. Ussery, 150 F.3d at 434. This Court in Ussery explicitly upheld the
constitutionality of the EPA under the Eleventh Amendment in a similar challenge when it stated,
“[b]y amending the EPA to include the States as employers, Congress sought to eliminate such
discrimination by the States themselves . . . [and] it goes without saying that the substantive
provisions of the Fourteenth Amendment prohibit the States from discriminating on the basis of
4
In 1963, Congress enacted the EPA pursuant to its Commerce Clause powers, and it limited
liability under the EPA to private employers. Ussery v. Louisiana, 150 F.3d 431, 435 (5th Cir. 1998).
In 1974, when Congress amended the EPA to apply to the states, however, it did not provide a
definitive statement regarding the Constitutional authority under which it acted. Id.
12
gender.” Id. at 437. Moreover, this Court in Ussery expressly rejected the argument that the
University makes regarding Congressional reliance on Article I to amend the EPA to include the
states. It stated that “the 1974 Amendments were a separate statute, and we must examine that
statute and its legislative history to determine if Congress stated its intent to legislate under any
particular constitutional provision.” Id. at 436 n.2.5
We find that in the wake of Kimel, the EPA nevertheless does not vi olate the Eleventh
Amendment of the Constitution because it is congruent and proportional “between the injury to be
prevented or remedied and the means adopted to that end” and is therefore an appropriate use of
Congress’s § 5 power of the Fourteenth Amendment. City of Boerne, 521 U.S. at 520. Kimel held
that the ADEA was not an appropriate use of Congress’s § 5 power because it was not congruent
and proportional to the means employed by the Equal Protection Clause to prohibit discrimination
by the states on the basis of age. Kimel, 528 U.S. at 82-86. The Court essentially found that the
discriminatory conduct that is prohibited by the ADEA, as applied to the states, is disproportionate
to similar conduct prohibited by the Constitution’s Equal Protection Clause. Id.
The Kimel Court distinguished between state discrimination on the basis of age, which
requires rational review under Equal Protection, and state discrimination on the basis of race or
gender, which requires higher standards of review and “a tighter fit between the discriminatory means
and the legitimate ends they serve.” Id. at 84. Importantly, other courts to consider this issue post-
5
Other courts examining this issue pre-Kimel have agreed with the Fifth Circuit’s holding in
Ussery. See, e.g., Varner v. Illinois State Univ., 226 F.3d 927, 935 n.4 (7th Cir. 2000), cert. denied,
__ S. Ct.__, 2001 WL 121186 ( Jun. 11, 2001) (No. 00-1277).
13
Kimel have been similarly swayed.6 See Varner, 226 F.3d at 934-35; Hundertmark v. Florida Dept.
of Transp., 205 F.3d 1272, 1276-77 (11th Cir. 2000); Kovacevich, 224 F.3d at 819-21; Anderson v.
State Univ. of New York, 107 F. Supp. 2d 158, 165 (N.D.N.Y. 2000).
Moreover, although the Kimel Court discussed the lack of legislative findings regarding
unconstitutional age discrimination by the states, it nonetheless stated “that lack of support is not
determinative of the § 5 inquiry.” Kimel, 528 U.S. at 91. Other courts examining the lack of
legislative findings regarding the discriminatory practices by the states on the basis of gender have
found t his argument unpersuasive, as the “historical record clearly demonstrates that gender
discrimination is a problem that is national in scope,” whether or not committed in the public sector.
Varner, 226 F.3d at 935-36; see also Kovacevich, 224 F.3d at 821 n.6 (stating that “we are satisfied
by Congress’s more general finding in enacting the original EPA that wage differentials are due to
outmoded beliefs about the relative value of men’s and women’s work . . . combined with the fact
that women have been subjected to a history of purposeful unequal treatment more generally”
(internal citations omitted)). Thus, we hold that the EPA is constitutional under the Eleventh
Amendment.
6
Similarly, the Court’s recent decision in Board of Trustees of the University of Alabama, et. al.
v. Garrett, et al., 121 S. Ct. 955 (2001), supports our hol ding. The Garrett Court held that the
Americans with Disabilities Act (“ADA”) unconstitutionally abrogates the states’ Eleventh
Amendment immunity because 1) discrimination in employment against the disabled is reviewed under
rational basis for purposes of the Equal Protection Clause and 2) the legislative record of the ADA
fails to reveal that Congress ident ified a pattern of irrational state discrimination. Id. at 963-66.
Here, gender, unlike disability, is reviewed under a stricter test in Equal Protection, which the Kimel
Court took pains to address. See Kimel, 528 U.S. at 84. Moreover, in contrast to disability, the
historical record clearly documents state discrimination on the basis of gender. Hence, the lack of
further Congressional findings regarding gender discriminat ion by the states is less significant in
importance.
14
CONCLUSION
We affirm the district court’s denial of UTHSCSA’s motion for judgment as a matter of law
because its judgment was legally sufficient to support the jury’s findings of prima facie sex
discrimination under Title VII and unequal pay under the EPA. We also agree with our sister circuits
that the EPA does not violate the Eleventh Amendment of the Constitution in light of the Supreme
Court’s decision in Kimel.
AFFIRMED.
15
DeMOSS, Circuit Judge, concurring in part and dissenting in part:
Insofar as the majority opinion affirms the judgment of the
district court and the jury verdict authorizing recovery against
the University for discrimination under Title VII (42 U.S.C.
§ 2000e et seq.), I reluctantly concur. The holding of the Supreme
Court in Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), which held
that suits brought in federal court by a private citizen against a
state for recovery of damages pursuant to Title VII were not barred
by the Eleventh Amendment because in adopting the 1972 Amendments
to the Civil Rights Act, Congress expressly acted pursuant to § 5
of the Fourteenth Amendment, is controlling. While I see
substantial inconsistencies between the Supreme Court’s holding in
Fitzpatrick v. Bitzer and several recent Supreme Court cases, I
have not found anything in those recent cases that would overrule
the holding in Fitzpatrick v. Bitzer, and we are, therefore, bound
by that holding until the Supreme Court itself modifies or
overrules it.
As to the portion of the majority opinion that affirms the
district court’s award of money damages based on the jury finding
of a violation of the Equal Pay Act of 1963, Pub. L. No. 88-38, 77
Stat. 56 (codified as amended at 29 U.S.C. § 206(d)), I
respectfully dissent. I write to explain why I believe the
majority opinion is in error in concluding that, in 1974 when
Congress amended the provisions of the Fair Labor Standards Act
(FLSA) so as to give individual state employees a cause of action
in federal court against a state, Congress relied upon § 5 of the
Fourteenth Amendment.
I. Historical Review
I think a brief historical review of the key statutory
provisions involved in this appeal will be helpful to understanding
my dissent. The Fair Labor Standards Act (codified as amended at
29 U.S.C. §§ 201-219) (hereinafter the FLSA) as originally enacted
in 1938, contained a section defining congressional findings and
declaration of policy (§ 202); a section defining various terms (§
203); a section fixing the minimum wage for various categories of
employees (§ 206); a section defining the maximum number of hours
in a work week and providing for payment at a higher rate for hours
worked in excess of that maximum (§ 207); a section defining child
labor limitations (§ 212); a section defining various exemptions
from coverage (§ 213); a section defining prohibited acts (§ 215);
a section defining penalties and methods of recovery (§ 216); and
a section defining various injunctive proceedings (§ 217). It
should be noted that § 202 is still in place and is an express and
explicit statutory statement by Congress of its findings of adverse
impacts on interstate commerce and its express declaration that it
17
was exercising its power to regulate commerce among the states in
order to eliminate these adverse conditions. There is no need
therefore to explore the legislative history of FLSA on the issue
of what constitutional power Congress relied upon in enacting it.
It should also be noted that at the time of its original passage,
the FLSA expressly excluded a state as being within the definition
of “employer” and excluded “state employees” as being included
within the definition of employees. It seems absolutely clear to
me, therefore, that at the time of its original enactment, the FLSA
was an exercise of the powers of Congress under the Interstate
Commerce Clause, Article 1 Section 8 of the United States
Constitution.
In 1963, Congress enacted the “Equal Pay Act of 1963”, which
amended 29 U.S.C. § 206 of the FLSA by adding thereto a new
subsection (d). This amendment to § 206 of the FLSA was set forth
in § 3 of the Equal Pay Act of 1963. Section 2 of the Equal Pay
Act of 1963 contains express findings by Congress that the
existence “of wage differentials based on sex” caused various
negative impacts on industries engaged in commerce or in the
production of goods for commerce; and contains an express
declaration by Congress that it was exercising “its power to
regulate commerce among the states” to correct these adverse
impacts. Just as in the case of the enactment of the FLSA itself,
it seems uncontrovertible to me that in enacting the Equal Pay Act
18
of 1963 which added new subsection (d) to § 206 of the FLSA,
Congress was acting pursuant to its Interstate Commerce Clause
powers to remedy specific adverse effects on interstate commerce
caused by “wage differentials based on sex.” In the House Report
regarding the Equal Pay Act of 1963, the Committee on Education and
Labor makes the following comments as to the purpose and major
provisions of the bill that became the Equal Pay Act of 1963:
The bill (H.R. 6060) would add one additional
fair labor standard to the act; namely, the
employees doing work should be paid equal wages,
regardless of sex.
Because of the long history and experience of
Government and business and workers with the Fair
Labor Standards Act, a simple expansion of that act
to include the equal pay concept offers the most
efficient and least difficult course of action.
. . . .
Such utilization serves two purposes: First,
it eliminates the need for a new bureaucratic
structure to enforce equal pay legislation; and
second, compliance should be made easier because
both industry and labor have a long-established
familiarity with existing fair labor standards
provisions.
Perhaps the most worthy result in this
approach is in the question of coverage. This bill
neither extends nor curtails coverage of the Fair
Labor Standards Act but simply provides that those
employers and employees who are presently covered
by that act shall be covered by the new provisions
relating to equal pay for equal work, regardless of
sex.
H.R. Rep. No. 88-309, at 1-2 (1963), reported in 1963 U.S.C.C.A.N.
687, 687-89.
19
The text of new subsection (d) of § 206 expressly provides
that the new equal pay for equal work standard will apply to an
“employer having employees subject to any provisions of this
section [§ 206].” As a result, an employer who is not obligated
to pay the minimum wage specified under § 206 is not obligated to
comply with the equal pay for equal work provision. Finally, I
would point out that in 1963 at the time of enactment of the Equal
Pay Act of 1963, under the express terms of the FLSA, the term
“employer” did not include a state and the term “employee” did not
include a state employee.
The final source of congressional action that must be
considered in resolving the issues in this appeal is the Act
entitled “Fair Labor Standards Amendments of 1974” [hereinafter
“1974 Act”], Pub. L. No. 93-259, 88 Stat. 53. The 1974 Act
consists of 29 separate sections covering 25 pages. Section 1 of
the 1974 Act simply provides the name by which the Act may be cited
and states that unless otherwise expressly specified any reference
to an amendment or repeal refers to sections or provisions of the
Fair Labor Standards Act of 1938 (29 U.S.C. §§ 201-219). Section
29 of the 1974 Act provides for effective date and implementation
by the Secretary of Labor. Section 28 of the 1974 Act makes
various amendments to the text of the Age Discrimination in
Employment Act of 1967, 29 U.S.C. § 630 et seq. These changes in
§ 28 are the source of the controversies in the Supreme Court’s
20
recent decision in Kimel v. Florida Board of Regents, 528 U.S. 62.
Section 2 through § 27, therefore, are the portions of the 1974 Act
that make changes in and additions to the Fair Labor Standards Act
of 1938. The most relevant changes to our decision here in Siler-
Khodr are:
(a) Section 6(a)(1) of the 1974 Act which made various
changes to the statutory definitions in § 203 of the FLSA
so as to: (1) include a new defined term of “public
agency” which includes “a state or a political
subdivision of a state”; (2) amends the term “employer”
to include “a public agency”; and (3) defines the term
“employee” to include “an employee of a public agency
except those who are covered by civil service or who hold
a public elective office.”
(b) Section 6(d)(1) of the 1974 Act which changes the
second sentence of § 16(b) [29 U.S.C. § 216(b)] to read
as follows:
Action to recover such liability may be
maintained against any employer
(including a public agency) in any
Federal or State court of competent
jurisdiction by any one or more employees
for and in behalf of himself or
themselves and other employees similarly
situated.
This change was made to satisfy the holding of the
Supreme Court in Employees of the Department of Health of
Missouri v. Missouri, 93 S. Ct. 1614, which was decided
21
in April 1973, just about one year prior to the issuance
of the committee report. In this suit, various employees
of the State of Missouri’s health facilities and agencies
brought suit in the federal district court for overtime
pay due them under § 16(b) of the FLSA. The district
court dismissed the suit as being an unconsented action
against the State of Missouri barred by the Eleventh
Amendment, and the Court of Appeals affirmed. The
Supreme Court held that although amendments to the FLSA
in 1966 extended statutory coverage to state employees in
hospitals, the legislative history failed to show a
congressional purpose to deprive the state of its
constitutional immunity to suit in a federal forum by
employees of its non-profit institutions because § 16(b)
of the FLSA as it existed at that time did not expressly
authorize suit by a state employee against the state in
federal court. This amendment to § 16(b) of FLSA
satisfies one of the grounds upon which the Supreme Court
in Employees v. Missouri held that “Congress did not lift
the sovereign immunity of the states under the FLSA.”
But even so, some other statements by the Employees Court
are worth noting, as follows:
Where employees in state institutions not
conducted for profit have such a relation to
interstate commerce that national policy, of which
Congress is the keeper, indicates that their status
22
should be raised, Congress can act. And when
Congress does act, it may place new or even
enormous fiscal burdens on the States. Congress
acting responsibly would not be presumed to take
such action silently....
But we have found not a word in the history of
the 1966 amendments to indicate a purpose of
Congress to make it possible for a citizen of that
State or another State to sue the State in the
federal courts....It is not easy to infer that
Congress in legislating pursuant to the Commerce
Clause, which has grown to vast proportions in its
applications, desired silently to deprive the
States of an immunity they have long enjoyed under
another part of the Constitution....
... In this connection, it is not amiss to
note that § 16(b) allows recovery by
employees, not only of the amount of unpaid
wages but of an equal amount as liquidated
damages and attorneys’ fees. It is one thing,
as in Parden, to make a state employee whole;
it is quite another to let him recover double
against a State. Recalcitrant private
employers may be whipped into line in that
manner. But we are reluctant to believe that
Congress in pursuit of a harmonious federalism
desired to treat the States so harshly.
93 S. Ct. at 1618-19.
(c) In § 7 of the 1974 Act, various changes in sections
of the FLSA were made in order to bring “domestic service
workers” under the provisions of that Act. Of these
changes the most significant to our current analysis is
the change made by § 7(a) of the 1974 Act, which inserts
the following new sentence in § 202(a) of the FLSA:
“That Congress further finds that the employment of
persons in domestic service in households affects
23
commerce.” This change clearly indicates to me that
Congress thought about the subject, and the basis of
authority, of what changes, if any, it needed to make in
§ 202 of the FLSA, the section that sets forth its
statements of effects on interstate commerce justifying
its exercise of the power to regulate commerce.
While it is true that the 1974 Act, unlike the FLSA and the
Equal Pay Act of 1963, does not contain express and explicit
language regarding impacts on interstate commerce and that the Act
was an exercise of the interstate commerce power, I think it is
sheer speculation to conclude as the panel majority does, and as
the panel in Ussery v. Louisiana 150 F.3d 431 (5th Cir. 1998) did,
that Congress acted on the basis of some other power in enacting
the 1974 Act. In the first place, as mentioned earlier, the
amendment of § 202 of the FLSA relating to the inclusion of
domestic service workers under the FLSA, clearly indicates that
Congress continued to believe that its authority for the adoption
of the FLSA was its interstate commerce power. But equally, if not
more persuasive, is the fact that the House Education and Labor
Committee Report specifically indicates that Congress was acting
under its interstate commerce power. See H.R. Rep. No. 93-913
(1974), reprinted in 1974 U.S.C.C.A.N. 2811. In the opening
paragraph of this report, the Committee quoted verbatim § 202 of
the FLSA to indicate the basic policy of the FLSA. The Committee
24
report then states under the heading “Purpose of the Legislation”
as follows:
The bill seeks to implement the policy of the Act
[the FLSA] by (1) providing an increase in the
minimum wage rate, and (2) extending the benefits
and protection of the Act to workers engaged in
commerce, or in the production of goods for
commerce or employed in enterprises engaged in
commerce or in the production of goods for
commerce.
Id. Later on in this same section of the Committee report, there
is a very cursory reference: “The bill extends the minimum wage and
overtime coverage of the Act to Federal, State and local government
employees....” Id. Later on in the report in a section-by-section
discussion of the main provisions of the bill, the report states:
Sec. 6. Federal and State Employees. -- Amends
definitions of the act to permit the extension of
minimum wage and overtime coverage to Federal,
State, and local public employees.
Id. Later on in this report, there is a two-page discussion of § 6
of the bill, which would extend “minimum wage and overtime coverage
to about five million nonsupervisory employees in the public sector
not now covered by the Act.” Id. In this discussion, there is no
specific reference to the “equal pay for equal work” provisions of
subsection (d) of § 206; there is no reference to “discrimination
on the basis of sex” by the states against their employees; there
is no reference to unconstitutional state laws that foster
discrimination in pay on the basis of sex; there is no reference
25
to states denying equal protection of the laws because of wage
rates differing on the basis of sex; and finally there is no
discussion or finding by the Committee that pay differentials on
the basis of sex between workers doing the same job for the states
requires exercise by the Congress of its powers under § 5 of the
Fourteenth Amendment. There is a lengthy portion of this report
which constitutes an overview of the history of the FLSA and
various Supreme Court decisions relating thereto. Since this
committee report was issued in March 1974, it is not surprising
that this historical review of the Act and Supreme Court decisions
generally arrives at the conclusion that the Congress has the power
under the Interstate Commerce Clause to make the extension of the
Fair Labor Standards Act to state employees as contemplated by the
1974 Act. This discussion focused primarily on the Supreme Court
decision in Maryland v. Wertz, 88 S. Ct. 2017 (1968). One of the
issues involved in Wertz was whether or not the state’s sovereign
immunity was abrogated by certain amendments made in 1966 that
extended wage and hour coverage to employees of hospitals, mental
institutions, schools, and institutions of higher education
regardless of whether these institutions were public or private or
operated for profit or not for profit. While affirming the lower
court’s decision not to enjoin enforcement of these provisions, the
Supreme Court in Wertz expressly reserved for later determination
26
all questions of the state’s sovereign immunity from suit
guaranteed by the Eleventh Amendment.
In light of the foregoing, I come to the following
conclusions:
1. In adopting the FLSA and the Equal Pay Act of 1963,
Congress expressly and explicitly, in the statutes themselves,
relied upon its powers under the Interstate Commerce Clause of the
Constitution.
2. In passing the 1974 Act, Congress acted under its
authority under the Interstate Commerce Clause. While this
conclusion is not as express and as explicit as that regarding the
FLSA and the Equal Pay Act of 1963, there is overwhelming evidence
upon which to draw such a conclusion, and there is no evidence that
would support a contrary conclusion.
3. From my review of the statutory language in each of these
legislative enactments and their respective legislative histories,
I can see absolutely no basis for treating the provisions of
§ 206(d) separately and apart from the remainder of the Fair Labor
Standards Act for purposes of determining the constitutional power
upon which Congress purported to act.
I disagree completely with my colleagues in the majority who
relied upon the prior opinion of this Court in Ussery, which relied
upon prior opinions of other Circuit Courts, in attributing some
sort of separate standing to the Equal Pay Act for purposes of
27
determining its constitutionality. Once the bill which was labeled
as the Equal Pay Act of 1963 was passed and its substantive
amendment to § 206(d) incorporated in the U.S. Code, it became for
all purposes and intents a portion of the Fair Labor Standards Act
just as though it had been in the original Act. In truth and in
fact, the provisions of subsection (d) of § 206 could not be
applied in any case without simultaneous reference to the other
subsections of § 206, the definitions in § 203, the exemptions in
§ 213, and the remedies available in § 216.
II. The Impact of Seminole Tribe
No satisfactory disposition of the case now before us can be
accomplished without giving full application to the decision of the
Supreme Court in Seminole Tribe of Florida v. Florida, 116 S. Ct.
1114 (1996). In Seminole Tribe, the Supreme Court made two
holdings that control in this case. First and foremost, the
Supreme Court overruled its prior decision in Pennsylvania v. Union
Gas Co., 109 S. Ct. 2273, in which a plurality of the Supreme Court
held that Congress had the power under the Interstate Commerce
Clause to abrogate the immunity that a State claims under the
Eleventh Amendment from suits by private individuals for money
damages. After stating “[w]e feel bound to conclude that Union Gas
was wrongly decided and that it should be, and now is, overruled,”
the Court went on to state:
28
[W]e reconfirm that the background principle
of state sovereign immunity embodied in the
Eleventh Amendment is not so ephemeral as to
dissipate when the subject of the suit is an area,
like the regulation of Indian commerce, that is
under the exclusive control of the Federal
Government....The Eleventh Amendment restricts the
judicial power under Article III, and Article I
cannot be used to circumvent the constitutional
limitations placed upon federal jurisdiction.
Petitioner’s suit against the State of Florida must
be dismissed for a lack of jurisdiction.
Seimole Tribe, 116 S. Ct. at 1131-32. The Act in question in this
case was the Indian Gaming Regulatory Act, which imposed upon the
states a duty to negotiate in good faith with an Indian tribe
toward the formation of a compact and authorized a tribe to bring
suit in federal court against a state in order to compel
performance of that duty. The Supreme Court determined that the
language of the Act was sufficient to indicate Congress’ clear
intent to abrogate the state’s sovereign immunity; notwithstanding
that determination, the Court concluded that the Indian Commerce
Clause of the Constitution does not grant Congress that power.
After making the “intention” determination, the Supreme Court said
its inquiry was focused on one question: “Was the Act in question
passed pursuant to a constitutional provision granting Congress the
power to abrogate?” Id. at 1125.
In my view, this precise question rephrased to fit the
circumstances of this case is the determinative issue for this
Court. That question is “Was the 1974 Act passed pursuant to a
29
constitutional provision granting Congress the power to abrogate?”
That question involves two subordinate questions as follows:
a. Under what provision of the Constitution was the 1974 Act
passed; and
b. Does that constitutional provision grant Congress the
power to abrogate the state’s Eleventh Amendment immunity from
suit?
For the reasons stated earlier in this dissent, I have no
trouble at all concluding that the 1974 Act was passed pursuant to
Congress’ powers under the Interstate Commerce Clause. And in my
view, the answer to the second subquestion is controlled by
Seminole Tribe and must be “no”. Answers to these questions are
strictly factual determinations to be made on the basis of the
statutory text and the legislative history as of the time of
“passage” or “enactment” of the Act in question. I make this point
expressly because I disagree with the panel majority’s reliance on
our prior decision in Ussery, which relied on an Eighth Circuit
case and stated:
Seminole Tribe “requires us to make an objective
inquiry, namely whether Congress could have enacted
the legislation at issue pursuant to a
constitutional provision granting it the power to
abrogate.” (Emphasis added.)
150 F.3d at 436 (quoting Crawford v. Davis, 109 F.3d 1281, 1283
(8th Cir. 1997). But this “could of, would of, should of” concept
is totally inconsistent with the language of Seminole Tribe. The
30
question posed in Seminole Tribe does not say “could the Act in
question have been passed pursuant to any constitutional provision
granting Congress the power to abrogate”? In Seminole Tribe, the
Supreme Court determined that the Act in question (the Indian
Gaming Regulatory Act) was passed pursuant to the constitutional
provision authorizing Congress to “regulate commerce with Indian
tribes,” but that “Congress does not have the authority under the
Constitution to make the State suable in federal court....” 116 S.
Ct. at 1133. Furthermore, the Court in Seminole Tribe went on to
state:
Nor are we free to rewrite the statutory scheme in
order to approximate what we think Congress might
have wanted had it known that § 2710(d)(7) was
beyond its authority. If that effort is to be
made, it should be made by Congress, and not by the
federal courts.
Id. The majority opinion in Seminole Tribe does not get into any
speculation as to whether § 5 of the Fourteenth Amendment could
have provided the constitutional authority for the abrogation of
states’ Eleventh Amendment immunity which Congress proposed in the
Indian Gaming Regulatory Act. I think that it is a mistake and an
erroneous application of Supreme Court precedent for the majority
to go through the convoluted, semantical speculations as set forth
in their opinion to come up with their conclusion that § 5 of the
Fourteenth Amendment supports the abrogation of state immunity from
private suits for money damages insofar as claims under 29 U.S.C.
§ 206(d) are concerned. Accordingly, I would vacate the portions
31
of the judgment awarding damages under the Equal Pay Act.
32