Opinion
Civil Action No. 04-138, SECTION "A" (5).
July 22, 2004
Before the Court is a Motion to Dismiss for Lack of Subject Matter Jurisdiction and for Failure to State a Claim Upon Which Relief Can Be Granted (Rec. Doc. 5) filed by defendant State of Louisiana, Department of Health and Hospitals ("DHH"). Plaintiff, Ronald Grier, opposes the motion. The motion, set for hearing on July 14, 2004, is before the Court on the briefs without oral argument. For the following reasons the motion is GRANTED.
Background
Plaintiff, Ronald Grier ("Grier"), was employed by DHH from July 1991 until June 16, 2000. Grier alleges that DHH denied him five promotions during the course of his employment with the agency. On June 16, 2000, Grier alleges that he was constructively discharged when he resigned his position as a Laboratory Scientist 2. Grier filed this suit in January 2004, after alleging violations of Title VII, 42 U.S.C. § 1981, and relevant state law.
DHH now moves for dismissal of the § 1981 claims based upon Eleventh Amendment immunity.
Discussion
DHH argues that it is entitled to immunity from suit on the § 1981 claims pursuant to the Eleventh Amendment to the United States Constitution. DHH argues that the State of Louisiana has not waived its sovereign immunity for § 1981 claims and that Congress has expressed no intent to abrogate state sovereign immunity for civil rights claims.
In opposition, Grier acknowledges that DHH is a state agency entitled to Eleventh Amendment immunity. Opposition at 8. However, Grier argues that a plain reading of § 1981 indicates that Congress intended to abrogate state sovereign immunity for claims brought under that statute.
In general, the Eleventh Amendment bars all persons from suing a state for money damages in federal court. Ussery v. State of Louisiana, 150 F.3d 431434 (5th Cir. 1998) (citing U.S. Const. amend. XI; Seminole Tribe v. Fla., 517 U.S. 44 (1996)). The Eleventh Amendment is not an absolute bar because states may consent to suit or Congress may abrogate the states' immunity.Id. (citing Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304 (1990)). DHH asserts that it has not waived its immunity and Grier does not dispute that contention. Thus, the question before the Court is whether Congress has abrogated the states' Eleventh Amendment immunity via § 1981.
Plaintiff recognizes that DHH is a state agency entitled to invoke Eleventh Amendment immunity. Oppos. at 8.
Congress must unequivocally express its intent to abrogate the states' Eleventh Amendment immunity. Ussery, 150 F.3d at 434 (citing Seminole Tribe, 517 U.S. at 55). The intent to abrogate must be expressed "in unmistakable language in the statute itself." Id. (citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 243 (1985)). Further, Congress must be acting pursuant to a valid exercise of power when it purports to abrogate the Eleventh Amendment. Id. (citing Seminole Tribe, 517 U.S. at 55). Congress can abrogate the states' Eleventh Amendment immunity when it enacts legislation pursuant to § 5 of the Fourteenth Amendment. Id.
Grier argues that a plain reading of § 1981 indicates that Congress intended to abrogate state immunity. The Court disagrees. Section 1981 reads as follows:
a) Statement of equal rights
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
(b) "Make and enforce contracts" defined
For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
(c) Protection against impairment
The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.42 U.S.C.A. § 1981 (West 2003). The statute contains no language whatsoever to suggest that Congress intended to abrogate Eleventh Amendment immunity much less language that could be considered "unmistakable" or "unequivocal." While the Fifth Circuit has not squarely addressed the issue of Eleventh Amendment immunity with respect to § 1981 claims, other courts have rejected the abrogation argument that Grier posits in this case. See, e.g., Perkins v. Bd. of Trustees of the Univ. of Ill., 1996 WL 308292 (N.D. Ill. June 4, 1996); Toney v. State of Alabama, 784 F. Supp. 1542 (M.D. Ala. 1992). The Court's own research has revealed no case in which a Court has held that Congress intended to abrogate state immunity when it enacted § 1981.
However, Grier looks to Gratz v. Bollinger, 539 U.S. 244 (2003), for support. Grier asserts that in Gratz, the Supreme Court stated that the admissions policy at issue violated 42 U.S.C. § 1981 and that the Court did not mention the Eleventh Amendment. Therefore, according to Grier, Gratz stands for the proposition that Congress abrogated the states' Eleventh Amendment immunity when it enacted § 1981.
Grier's reliance on Gratz is misplaced because the issue of Eleventh Amendment immunity was not before the Court. The state had raised the issue in the district court with respect to certain other claims but the district court had denied the defendant's motion for summary judgment on the issue. 539 U.S. at 259 n. 10. For whatever reason the defendant chose not to seek review of the adverse Eleventh Amendment immunity ruling. Id. As discussed above, a state is free to waive its Eleventh Amendment immunity. In this case, however, the State of Louisiana has not done so.
In sum, Grier's § 1981 claims are barred by the Eleventh Amendment.
Accordingly; IT IS ORDERED that the Motion to Dismiss for Lack of Subject Matter Jurisdiction and for Failure to State a Claim Upon Which Relief Can Be Granted (Rec. Doc. 5) filed by defendant State of Louisiana, Department of Health and Hospitals should be and is hereby GRANTED. Plaintiff's claims brought under 42 U.S.C. § 1981 are DISMISSED.