IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________________
No. 97-30545
________________________
KAREN M. USSERY,
Plaintiff-Appellee,
versus
STATE OF LOUISIANA, on behalf of
Louisiana Department of Health and
Hospitals; PINECREST DEVELOPMENTAL
CENTER; RODNEY RICHMOND,
Defendants,
STATE OF LOUISIANA, on behalf of
Louisiana Department of Health and
Hospitals,
Defendant - Appellant.
___________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
__________________________________________________________________
August 5, 1998
Before DUHÉ, BENAVIDES, and STEWART, Circuit Judges.
BENAVIDES, Circuit Judge:
The appellant, the State of Louisiana, brings this
interlocutory appeal challenging the district court’s denial of its
motion for summary judgment, in which the State argued that that
the plaintiff’s claims against it under Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e, and the Equal
Pay Act of 1963 (“EPA”), as amended, 29 U.S.C. § 206(d), were
barred by the Eleventh Amendment. For the reasons set forth below,
we AFFIRM.
Background
On November 17, 1995, Karen M. Ussery, a state employee at the
Pinecrest Developmental Center in Pineville, Louisiana, filed suit
against the State of Louisiana through the Department of Health and
Hospitals, Pinecrest Developmental Center, and Rodney Richmond,
alleging claims under Title VII, the EPA, and state law. Ms.
Ussery alleged that she was retaliated against for filing a prior
EEOC complaint, that two employment practices related to the
attainment of her master’s degree violated the EPA, that the
defendants violated La. R.S. 23:1006 and La. R.S. 51:2231, and that
Rodney Richmond intentionally inflicted emotional distress on her.
On March 13, 1997, the State of Louisiana moved for summary
judgment, arguing that plaintiff’s claims against it were barred by
the Eleventh Amendment and that the claims failed as a matter of
law. On April 25, 1997, the district court denied the State’s
motion for summary judgment on the basis of Eleventh Amendment
immunity as to the plaintiff’s Title VII and EPA claims, denied the
State’s motion for summary judgment on the merits as to the
plaintiff’s Title VII and EPA claims, granted the State summary
judgment as to plaintiff’s state law claims, and granted defendant
Richmond summary judgment as to plaintiff’s state law claims
against him. On May 23, 1997, the State filed a timely notice of
appeal. This court has jurisdiction under the collateral order
doctrine over only the State’s argument that the plaintiff’s claims
under Title VII and the EPA are barred by the Eleventh Amendment.
See Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy,
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Inc., 506 U.S. 139, 146-47, 113 S. Ct. 684, 689 (1993).1
Standard of Review
Whether a state is entitled to Eleventh Amendment immunity is
a question of law which this court reviews de novo. See Stine v.
Marathon Oil Co., 976 F.2d 254, 259 (5th Cir. 1992).
Discussion
In general, the Eleventh Amendment bars all persons from suing
a State for money damages in federal court. See U.S. Const. amend.
XI; Seminole Tribe v. Florida, 517 U.S. 44, 54, 116 S. Ct. 1114,
1122 (1996). Of course, this bar is not absolute: a State may
consent to suit or Congress may abrogate the States’ Eleventh
Amendment immunity. See Port Auth. Trans-Hudson Corp. v. Feeney,
495 U.S. 299, 304, 110 S. Ct. 1868, 1872 (1990). In this case, it
is clear that the State of Louisiana has not consented to be sued
in federal court. See La. R.S. 13:5106; Delahoussaye v. City of
New Iberia, 937 F.2d 144, 147 (5th Cir. 1991). Thus, the sole
question before the court is whether Congress abrogated the States’
Eleventh Amendment immunity when it amended Title VII and the EPA.
In Seminole Tribe, the Supreme Court set forth a two-part test
for determining whether Congress has properly abrogated the States’
Eleventh Amendment immunity. First, the court must determine
1
In her response brief, Ms. Ussery argues that she has set forth a prima
facie case under both Title VII and the EPA. Because this matter is before this
court on interlocutory appeal for the limited purpose of determining whether the
State of Louisiana is entitled to Eleventh Amendment immunity, the merits of Ms.
Ussery’s claims are not before the court.
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whether Congress “unequivocally expresse[d] its intent to abrogate
the immunity.” 517 U.S. at 55, 116 S. Ct. at 1123 (quotation
omitted). This intent to abrogate must be expressed “in
unmistakable language in the statute itself.” Atascadero State
Hosp. v. Scanlon, 473 U.S. 234, 243, 105 S. Ct. 3142, 3148 (1985).
Second, the court must determine whether Congress acted “pursuant
to a valid exercise of power.” Seminole Tribe, 517 U.S. at 55, 116
S. Ct. at 1123 (quotation omitted). In Seminole Tribe, the Court
reaffirmed its previous holding that Congress can abrogate the
States’ Eleventh Amendment immunity when it enacts legislation
pursuant to § 5 of the Fourteenth Amendment. See id. at 59, 116 S.
Ct. at 1125.
A. Title VII
The State first argues that Congress has not sufficiently
stated its intent to abrogate the States’ Eleventh Amendment
immunity with respect to Title VII. In Fitzpatrick v. Bitzer,
however, the Supreme Court specifically held that “in the 1972
Amendments to Title VII of the Civil Rights Act of 1964, Congress,
acting under Section 5 of the Fourteenth Amendment, authorized
federal courts to award money damages in favor of a private
individual against a state government found to have subjected that
person to employment discrimination on the basis of race, color,
religion, sex, or national origin.” 427 U.S. 445, 447 96 S. Ct.
2666, 2667-68 (1976). Since Fitzpatrick, this court has repeatedly
held that Title VII clearly abrogated the States’ Eleventh
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Amendment immunity. E.g., Pegues v. Mississippi State Employment
Serv., 899 F.2d 1449, 1453 (5th Cir. 1990); Whiting v. Jackson
State Univ., 616 F.2d 116, 127 n.8 (5th Cir. 1980).
Nonetheless, the State argues that, despite the clear language
in Fitzpatrick and this court’s subsequent cases, none of thse
cases has really addressed whether Title VII contains the
unmistakable congressional waiver of the States’ Eleventh Amendment
immunity required by the Supreme Court in Atascadero, which was
decided some nine (9) years after Fitzpatrick. According to the
State, under Atascadero, in order for Congress to validly abrogate
the States’ Eleventh Amendment immunity, it must make an express
statement of such an intent in the text of the statute using the
words “States,” “Eleventh Amendment immunity,” or “sovereign
immunity.” The courts, however, have never required that Congress
express this intent using the magic language suggested by the
State. Instead, Atascadero requires only that Congress express its
intent to abrogate the States’ Eleventh Amendment immunity “in
unmistakable language in the statute itself.” 472 U.S. at 243, 105
S. Ct. at 3148. As the Court recognized in Fitzpatrick, Congress
made its intent to abrogate the States’ Eleventh Amendment immunity
unmistakably clear when it amended Title VII’s definition of
“person” to include governments, governmental agencies, and
political subdivisions, 42 U.S.C. § 2000e(a), and simultaneously
amended the definition of employee to include individuals “subject
to the civil service laws of a State government, government agency,
or political subdivision,” 42 U.S.C. § 2000e(f). See Fitzpatrick,
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427 U.S. at 449 n.2, 96 S. Ct. at 2668 n.2. Accordingly, the
State’s argument to the contrary is unavailing.
B. Equal Pay Act
The Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d), was
enacted by Congress as an amendment to the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. §§ 201-219. In short, the EPA requires that
all persons performing equal work must receive equal pay, unless a
difference in pay is justified by a consideration other than
gender. “As with many civil rights statutes, the Equal Pay Act
initially applied only to private employers. In 1974, however,
Congress extended the Act to include the States [as employers].”
Timmer v. Michigan Dep’t of Commerce, 104 F.3d 833, 837 (6th Cir.
1997) (citations omitted).
1. Intent to Abrogate
On appeal, the State wisely does not contest the district
court’s conclusion that Congress expressed its intent to abrogate
the States’ Eleventh Amendment immunity in “unmistakable language”
in the EPA itself. The private enforcement provision of the FLSA,
of which the EPA is a part, provides that “[a]n action to recover
the liability prescribed . . . 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.” 29 U.S.C. § 216(b). The term “employer” is defined in
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the FLSA to include “a public agency,” 29 U.S.C. § 203(d), which is
in turn defined as “the government of a State or political
subdivision thereof” and any agency of a State, 29 U.S.C. § 203(x).
Finally, the term “employee” is defined to include “any individual
employed by a State, political subdivision of a State, or an
interstate governmental agency.” 29 U.S.C. § 203(e)(2)(C).
Given the plain language of the statute, the five courts of
appeals that have addressed the issue have held that the
definitional and enforcement provisions in the EPA contain the
necessary “clear statement” of Congress’s intent to abrogate the
States’ Eleventh Amendment immunity. See Timmer, 104 F.3d at 837-
38 (6th Cir. 1997); see also Mills v. Maine, 118 F.3d 37, 42 (1st
Cir. 1997) (involving an Eleventh Amendment challenge to the
overtime and minimum wage provisions of the FLSA); Brinkman v.
Department of Corrections, 21 F.3d 370, 372 (10th Cir. 1994)
(same); Reich v. New York, 3 F.3d 581, 590-91 (2d Cir. 1993)
(same); Hale v. Arizona, 993 F.2d 1387, 1391-92 (9th Cir. 1993) (en
banc) (same). We now join our sister circuits in reaching the same
conclusion.
2. Power to Abrogate
We turn next to the question of whether Congress acted
“pursuant to a constitutional provision granting Congress the power
to abrogate.” Seminole Tribe, 517 U.S. at 58, 116 S. Ct. at 1125.
Because it is well settled that “the constitutionality of action
taken by Congress does not depend on recitals of the power which it
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undertakes to exercise,” Woods v. Cloyd W. Miller Co., 333 U.S.
138, 144, 68 S. Ct. 421, 424 (1948); accord EEOC v. Wyoming, 460
U.S. 226, 243-44 n.18, 103 S. Ct. 1054, 1064 n.18 (1983) (dicta),
we agree with the Eighth Circuit that 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. As long as Congress
had such authority as an objective matter, whether it also had the
specific intent to legislate pursuant to that authority is
irrelevant.” Crawford v. Davis, 109 F.3d 1281 (8th Cir. 1997).2
In this case, the sole constitutional basis upon which Congress
could have abrogated the States’ Eleventh Amendment immunity is §
5 of the Fourteenth Amendment. See Seminole Tribe, 517 U.S. at 59,
116 S. Ct. at 1125.
Relying on the Supreme Court’s decision in Pennhurst State
School & Hospital v. Halderman, 451 U.S. 1, 101 S. Ct. 1531 (1981),
however, the State argues that this general rule of judicial review
is inapplicable when Congress acts pursuant to § 5 of the
2
Given the objective nature of our judicial review, the State’s cursory
argument that the statutory text and legislative history of the 1974 Amendments
to the EPA support a finding that Congress was acting pursuant to the interstate
commerce clause when it made those amendments is immaterial. Moreover, to the
extent that the State relies on Congress’s statement that it was acting pursuant
to the commerce clause in the original act, this argument is entirely
unpersuasive. As the Sixth Circuit noted in Timmer, 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. See Timmer, 104 F.3d at 838 n.7. To the extent that
the State relies on the legislative history of the 1974 amendments, the State
points to no specific portion of the legislative history in support of its
position; and, after scouring the legislative history of the 1974 amendments, we
find no definitive statement by Congress as to the Constitutional authority by
which it acted. For a more detailed discussion of what the legislative history
shows, see Timmer, 104 F.3d at 838 n.7.
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Fourteenth Amendment. According to the State, Pennhurst requires
that, in order for abrogation to be complete, Congress must
specifically state that it is acting pursuant to § 5 of the
Fourteenth Amendment. We disagree.
In Pennhurst, the Court addressed whether Congress intended
the Developmentally Disabled Assistance and Bill of Rights Act of
1975, 42 U.S.C. §§ 6000 et seq., to “impose[] an obligation on the
States to provide, at their own expense, certain kinds of [medical]
treatment.” Id. at 15, 101 S. Ct. at 1538. In the course of
“discerning congressional intent,” the Court examined “the possible
sources of Congress’ power to legislate,” including § 5 of the
Fourteenth Amendment. Id. at 15, 101 S. Ct. at 1538-39. With
respect to § 5, the Court, recognizing the federalism concerns
involved in inferring such an intent into an ambiguous statute,
stated: “Because such legislation imposes congressional policy on
a State involuntarily, and because it often intrudes on traditional
state authority, we should not quickly attribute to Congress an
unstated intent to act under its authority to enforce the
Fourteenth Amendment.” Id. at 16, 101 S. Ct. at 1539. Finding no
support for the lower court’s finding that Congress acted pursuant
to § 5, the Court concluded that Congress did not intend to impose
such financial obligations upon the States pursuant to § 5.
Although facially appealing, the State’s reliance on Pennhurst
is misplaced. Unlike the case at hand, the Court in Pennhurst “was
resolving an issue of statutory construction, not . . . a question
of Congressional authority to legislate.” EEOC v. Elrod, 674 F.2d
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601, 609 n.8; accord EEOC v. Wyoming, 460 U.S. 226, 103 S. Ct. 1054
(1983)(stating, albeit in dicta, that “[o]ur task in Pennhurst []
was to construe a statute, not to adjudge its constitutional
validity”) (quotations and internal citations omitted). In other
words, Pennhurst addressed whether Congress intended to alter the
traditional federal-state balance, not whether Congress had the
authority to do so once it has already unambiguously stated its
intent to alter that balance. As the Court later stated in Gregory
v. Ashcroft, the Pennhurst rule is a “rule of statutory
construction to be applied where statutory intent is ambiguous.”
501 U.S. 452, 470, 111 S. Ct. 2395, 2406 (1991). Under the first
prong of Seminole Tribe, however, Congress must unambiguously state
its intent to abrogate the States’ Eleventh Amendment immunity in
the language of the statute itself. See Seminole Tribe, 517 U.S.
at 55, 116 S. Ct. at 1123. Given this requirement, we see no
persuasive reasons why we should abandon the general rule of
judicial review and require that Congress reaffirm that intent
under the second prong of Seminole Tribe by stating that it is
abrogating the States’ Eleventh Amendment immunity pursuant to § 5
of the Fourteenth Amendment.
Thus, we return to the question of whether Congress could
have, as an objective matter, amended the EPA to apply to the
States as employers pursuant to § 5 of the Fourteenth Amendment.
We need not be detained for long. Section 5 of the Fourteenth
Amendment grants Congress broad authority to enforce the
amendment’s substantive provisions “by appropriate legislation.”
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U.S. Const. amend. XIV, § 5. In its simplest terms, the EPA is
designed to eliminate discrimination in pay and other employment
benefits based on an employee’s gender. By amending the EPA to
include the States as employers, Congress sought to eliminate such
discrimination by the States themselves. Because it goes without
saying that the substsantive provisions of the Fourteenth Amendment
prohibit the States from discriminating on the basis of gender, “we
are unable to understand how a statute enacted specifically to
combat such discrimination could fall outside the authority granted
to Congress by § 5.” Crawford, 109 F.3d at 1283.3
3
Even assuming that Pennhurst affects the Seminole analysis in some
manner, contrary to what the State implies, the specific language of Pennhurst
would not require that Congress expressly state that it was acting pursuant to
§ 5 of the Fourteenth Amendment. As the Sixth Circuit noted in Timmer,
First, the so-called "Pennhurst rule" says only that a court should not
"quickly attribute" to Congress an unstated intent to act pursuant to § 5.
Id. (emphasis added). This suggests only that a court should carefully
consider the propriety and effect of concluding that Congress has acted
pursuant to § 5. Second, the Court went on to distinguish between two
kinds of cases: those where "statutes ... simply prohibited certain kinds
of state conduct" and those like the one before the Court in Pennhurst,
where the "case for inferring intent is at its weakest where ... the
rights asserted impose affirmative obligations on the States to fund
certain services, since we may assume that Congress will not implicitly
attempt to impose massive financial obligations on the States." Id. at
16-17, 101 S.Ct. at 1539-40. In other words, the Court did not suggest
that a court should never infer a congressional intent to legislate
pursuant to § 5 of the Fourteenth Amendment, but rather that it should
first consider a number of factors before making such an inference. In
addition, while the cases cited by the Court involved statutes in which
Congress had expressly stated an intent to legislate pursuant to § 5, and
as such were "consistent" with the Pennhurst rule, see id. at 16, 101
S.Ct. at 1539, the Court did not suggest that these cases excluded the
possibility of inferring intent in appropriate circumstances.
104 F.3d at 840-41.
For these reasons, we conclude that, even assuming that we were to agree
with the State that Pennhurst affects the Seminole Tribe analysis in some
fashion, we would nonetheless reject the State’s proposed reading that Congress
must expressly state that it is acting pursuant to § 5 of the Fourteenth
Amendment. Moreover, even if we were to apply a so-called “Pennhurst proceed-
with-caution” rule, we would nonetheless hold that Congress properly abrogated
the States’ Eleventh Amendment immunity when it amended the EPA in 1974.
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Conclusion
For the reasons set forth above, we conclude that Congress
abrogated the States’ Eleventh Amendment immunity when it extended
both Title VII and the EPA to the States as employers.
Consequently, the decision of the district court is AFFIRMED, and
this case is REMANDED to the district court for further
proceedings.
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Ussery v. Louisiana Ex Rel. Louisiana Department of Health & Hospitals
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