Alaska v. EEOC

564 F.3d 1062, 2009 U.S. App. LEXIS 9613, 92 Empl. Prac. Dec. (CCH) 43,548, 106 Fair Empl. Prac. Cas. (BNA) 97, 2009 WL 1163863

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 1, 2009
• Docket: 07-70174
• Status: Published

Opinions

Opinion by Chief Judge Kozinski; Partial Concurrence and Partial Dissent by Judge O’Scannlain; Dissent by Judge Ikuta.

KOZINSKI, Chief Judge:

We must decide whether states have Eleventh Amendment immunity from claims under the Government Employee Rights Act of 1991 (GERA).

Facts

Lydia Jones and Margaret Ward worked in the office of then-Governor Walter Hickel of Alaska. Both were fired under disputed circumstances and filed complaints with the Equal Employment Opportunity Commission. Jones alleged that she was paid less because she is a black woman, sexually harassed and then retaliated against for complaining about the harassment. Ward alleged that she was paid less on account of her sex and that she was terminated because of statements she made supporting Jones’s complaint.

The EEOC assigned the cases to an administrative law judge. Before the ALJ, Alaska argued that Jones and Ward’s claims were barred by sovereign immunity. The ALJ disagreed. On interlocutory appeal, the EEOC denied the sovereign immunity defense and remanded for further proceedings. The state petitions for review of the EEOC’s decision.¹

Analysis

The Eleventh Amendment protects states from being sued without their consent. This immunity applies by its terms to the judicial power, but the Supreme Court has held that some administrative proceedings sufficiently resemble civil actions to be circumscribed as well. Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 760-61, 122 S.Ct. 1864, 152 L.Ed.2d 962 (2002). The contours of that principle aren’t completely clear, but the parties seem to agree that EEOC proceedings are sufficiently court-like to implicate the Eleventh Amendment. We assume, without deciding, that this is true.²

Congress may abrogate this immunity in certain circumstances. To determine when it has validly done so, we must “resolve two predicate questions: ... whether Congress unequivocally expressed its intent to abrogate” and, if so, “whether Congress acted pursuant to a valid grant of constitutional authority.” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000).

1. Congress’s intent to abrogate sovereign immunity in the Government Employee Rights Act is both “unequivocal and textual.” Dellmuth v. Muth, 491 U.S. 223, 230, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989); see also Atascadero v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985). As its title suggests, the statute is designed to give rights to government employees, including state employees, against their employers. The act amended Title VII to extend coverage of its employment discrimination provisions to such government employees: “[A]ny individual chosen or appointed, by a person elected to public office in any State ... to be a member of the elected official’s personal staff,” as Jones and Ward were, has rights under GERA to a workplace “free from any discrimination based on ... race, color, religion, sex, or national origin.” 42 U.S.C. §§ 2000e-16c(a)(l), 2000e-16b(a)(l). GERA authorizes the EEOC to order remedies for violations of these rights, 42 U.S.C. § 2000e-16c(b)(l), including “back pay (payable by the employer ... responsible for the unlawful employment practice).” 42 U.S.C. § 2000e-16b(b)(l), cross-referencing 42 U.S.C. § 2000e-5(g) (emphasis added).

A “general authorization for suit in federal court” is an insufficient expression of congressional intent to abrogate state sovereign immunity, Atascadero, 473 U.S. at 246, 105 S.Ct. 3142, as are inferences from legislative history and statutory purpose, Dellmuth, 491 U.S. at 230, 232, 109 S.Ct. 2397. But Dellmuth and Atascadero “do[ ] not preclude congressional elimination of sovereign immunity in statutory text that clearly subjects States to suit for monetary damages, though without explicit reference to state sovereign immunity or the Eleventh Amendment.” Dellmuth, 491 U.S. at 233, 109 S.Ct. 2397 (Scalia, J. concurring).³ GERA’s text makes congressional intent to abrogate state sovereign immunity “unmistakably clear.” Atascadero, 473 U.S. at 242, 105 S.Ct. 3142. GERA expressly covers state employees, and expressly gives them a right to collect damages “payable by the employer ” — the state. 42 U.S.C. § 2000e-5(g)(l) (emphasis added).

The only way Congress could have been clearer would have been to say “this act abrogates state sovereign immunity.” But the Supreme Court has made it quite plain that such magic words are unnecessary. Twice it has considered statutes with provisions like GERA’s — giving employees a cause of action for damages, and separately providing that state employers will pay — and twice it concluded that the statutes adequately expressed Congress’s intent to abrogate state sovereign immunity, even though neither statute includes the terms “abrogate,” “state sovereign immunity” or “Eleventh Amendment.” Kimel v. Florida Board of Regents, 528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000), considered the Age Discrimination in Employment Act (ADEA). One section of the ADEA incorporates an enforcement provision from a separate statute, the Fair Labor Standards Act (FLSA), “authorizing] employees to maintain actions for backpay ‘against any employer (including a public agency) in any Federal or State court of competent jurisdiction.’ ” 528 U.S. at 67-68, 73-74, 120 S.Ct. 631 (quoting 29 U.S.C. § 216(b), as cross-referenced in 29 U.S.C. § 626(b)). A separate section of the FLSA defines “public agency” to include “the government of a State or political subdivision thereof.” Id. at 74, 120 S.Ct. 631 (quoting 29 U.S.C. § 203(x)). The Court held that “[r]ead as a whole, the plain language of these provisions clearly demonstrates Congress’ intent to subject the States to suit for money damages at the hands of individual employees,” id. at 74, 120 S.Ct. 631, explaining that “our cases have never required that Congress make its clear statement in a single section or in statutory provisions enacted at the same time,” id. at 76,120 S.Ct. 631.

Nevada Department of Human Resources v. Hibbs, 538 U.S. 721, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003), likewise held that provisions of the Family and Medical Leave Act (FMLA) unequivocally expressed Congress’s intent to abrogate state sovereign immunity. Like the ADEA, the FMLA authorizes suits against employers, and incorporates a definition of employers that includes public agencies, and a definition of public agencies that includes states, but doesn’t refer to state sovereign immunity or the Eleventh Amendment. GERA is cut from the same cloth as the ADEA and the FMLA; its reference to states as potential defendants who must answer in damages is as clear, and its focus on government employers sharper, than in these two other statutes. GERA’s provisions, entitling state employees to “back pay ... payable by the employer,” 42 U.S.C. §§ 2000e-5(g)(l), 2000e-16c, unmistakably express Congress’s intent to allow suits against states for damages. As in Kimel and Hibbs, “[t]he clarity of Congress’ intent here is not fairly debatable.” Hibbs, 538 U.S. at 726, 123 S.Ct. 1972. The remaining question, to which we now turn, is whether Congress had the authority to do what it intended.

2. Section 5 of the Fourteenth Amendment empowers Congress to “enforce, by appropriate legislation, the provisions of’ that article, and state sovereign immunity may be abrogated in service of this goal. There are two ways in which Congress can do this. First, Congress may prohibit and provide a remedy for conduct that actually violates the Amendment. E.g., United States v. Georgia, 546 U.S. 151, 158, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006) (upholding a prohibition against cruel and unusual treatment of prisoners). Second, legislation “which deters or remedies constitutional violations can fall within the sweep of Congress’ enforcement power even if in the process it prohibits conduct which is not itself unconstitutional.” City of Boerne v. Flores, 521 U.S. 507, 518, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). We refer to the latter kind of legislation as prophylactic, and it must satisfy certain strict requirements designed to ensure that Congress doesn’t substantively redefine the Fourteenth Amendment’s guarantees. Before we can uphold prophylactic legislation, we must be convinced that it is congruent and proportional to the harm that Congress sought to prevent, and we often examine legislative findings as part of that inquiry. Id. at 520, 117 S.Ct. 2157. But the congruence and proportionality requirement applies only to prophylactic legislation; it doesn’t apply to a direct remedy for unconstitutional conduct.

We therefore consider first whether Jones and Ward allege actual violations of the Fourteenth Amendment by the State of Alaska. If they do, we needn’t decide whether GERA is valid prophylactic legislation. As Georgia indicates by its method, see 546 U.S. at 158-60, 126 S.Ct. 877, when legislation provides a direct remedy for unconstitutional conduct, the Boeme inquiry is superfluous. The merits of these claims (and Alaska’s various defenses) aren’t before us; we consider only whether each claim alleges conduct that, if it occurred and wasn’t justified by a valid defense, would have violated the Fourteenth Amendment.

a. This inquiry is straightforward for Jones and Ward’s pay discrimination claims. Jones alleges that she was “paid less than [her] male counterparts” by the Governor’s Office, and that “this was intentionally imposed due to[her] sex, female and [her] race, black.” Ward alleges that the Governor “treated [her] differently than [her] counterparts due to [her] sex, female,” specifically by paying her less than a male counterpart. Intentional race discrimination violates equal protection unless narrowly tailored to serve a compelling state interest. See Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). Disparate treatment on the basis of sex requires an “exceedingly persuasive justification.” Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982). The state has claimed no such interest or justification, and we’d be hard-pressed to figure out what it might be. The alleged pay discrimination, if it happened, denied Jones and Ward equal protection of the law.

b. We next consider Jones’s allegations of workplace harassment. She alleges that she was “the butt of sexual jokes” and “unsolicited physical contact.” According to her complaint, one of the Governor’s top deputies approached her from behind and placed his hand between her legs and, on a separate occasion, approached her as if to grab her breasts. Jones further alleges that she was retaliated against “for filing a ... complaint of sexual h[a]rassment.”

While the Supreme Court hasn’t specifically considered whether sexual harassment of a governmental employee can violate the Equal Protection Clause, several of our sister circuits have concluded that it can, and we agree. See, e.g., Southard v. Texas Bd. of Criminal Justice, 114 F.3d 539, 550 (5th Cir.1997) (“[S]exual harassment in public employment violate[s] the Equal Protection Clause of the Fourteenth Amendment.”) (collecting cases); Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir.1990) (sustaining section 1983 liability for sexual harassment); Bohen v. City of East Chicago, 799 F.2d 1180, 1185 (7th Cir.1986) (“[S]exual harassment by a state employer ... constitutes sex discrimination in violation of the equal protection clause.”).

Because the suit is against Alaska, not the man who allegedly harassed Jones, we must consider whether Jones alleged that the state violated her Equal Protection rights. Jones cannot make such an allegation under a theory of respondeat superior; she must allege that Alaska has intentionally discriminated against her. Davis, 426 U.S. at 239, 96 S.Ct. 2040; see also Andrews, 895 F.2d at 1480. While Jones has not alleged that the Governor’s Office intentionally discriminated against her through an official policy promoting sexual harassment, the office may nevertheless have violated the Equal Protection Clause by intentionally refusing to redress the sexual harassment of Jones by another employee.⁴ See Bohen, 799 F.2d at 1187 (holding that a government employee can make “a claim of sexual harassment under the equal protection clause” by “showing that the conscious failure of the employer to protect the plaintiff from the abusive conditions created by fellow employees amounted to intentional discrimination”).

Jones alleges that she reported the sexual harassment, and that the Governor’s Office responded by punishing her, rather than disciplining her harasser. This alleged conduct, if true, would constitute intentional sexual discrimination by the state. Jones need not allege that other state employees were harassed as well, or that the Governor’s Office routinely failed to respond to such harassment, to make out an Equal Protection claim. Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 n. 14, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Bohen, 799 F.2d at 1186-87 (“[A] single discriminatory act against one individual can amount to intentional discrimination for equal protection purposes. An equal protection plaintiff therefore need not prove a discriminatory policy against an entire class; discrimination against the plaintiff because of her membership in the class is by itself enough.”) (citations omitted).

c. Finally, we consider Ward’s claim of retaliatory discharge. Unlike the pay disparity and sexual harassment claims, this claim doesn’t allege differential treatment because of race or sex. Rather, Ward complains that she was punished for speaking up about the harassment of Jones. The Fourteenth Amendment’s Due Process Clause incorporates the First Amendment’s free speech guarantees, so if Ward has alleged conduct that would violate the First Amendment,⁵ then GERA abrogates state immunity as to that claim as well.⁶

Ward alleges that, after she was interviewed at work regarding Jones’s sexual harassment charge, she received phone calls threatening termination “if [she] did not back off.” Ward instead held a press conference, publicly supporting Jones’s allegations of sexual harassment in the Governor’s Office. The Governor’s Office then placed Ward on leave while it investigated her “participation in [the] March 9, 1994, press conference, and whether, through that participation, [she] breached [her] duty of loyalty to[her] employer.” At the close of the investigation, Ward was terminated.

The First Amendment prohibits state retaliation against a public employee for speech made as a citizen on a matter of public concern. Connick v. Myers, 461 U.S. 138, 146—17, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). We have held that complaints of sexual harassment can constitute such speech. Freitag v. Ayers, 468 F.3d 528, 545 (9th Cir.2006); see also Con-nick, 461 U.S. at 148 n. 8, 103 S.Ct. 1684 (racial discrimination in a public workplace is “a matter inherently of public concern”). Ward was alleging misconduct in the Governor’s Office: mistreatment of some Alaskans because of race and sex. The allegations were made publicly, as well as through internal channels, and received press coverage. The allegations could have affected the gubernatorial race and had far-reaching effects on Alaskan politics; the public interest in such allegations is plain. The Governor’s Office has admitted that it placed Ward on leave and began the investigation that led to her firing because of Ward’s public statements: “Following that press conference,[Ward was] placed on paid, administrative leave because [her] conduct was contrary to the Governor’s interests and because we wanted [her] out of the office so that we could conduct an unimpeded investigation.”

That Ward’s statements arose out of Jones’s employment grievance doesn’t mean Ward wasn’t speaking as a citizen on a matter of public concern. Unlike the employee in Connick, Ward was not speaking about her “personal employment dispute,” nor were her comments directed solely at coworkers. 461 U.S. at 148 n. 8, 103 S.Ct. 1684. Rather, Ward held a press conference to protest what she saw as sex discrimination in the Governor’s Office. The Supreme Court has held that such public criticism by government employees of their employers is protected speech. Pickering v. Bd. of Ed., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); see Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979).

“[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006); O’Scannlain dissent at 1074-75. But Ward’s official duties didn’t require her to complain about the conditions of Jones’s employment, or to bring the alleged sexual harassment to the public’s attention.⁷ Cf. Garcetti, 547 U.S. at 421, 126 S.Ct. 1951 (“[Complainant] wrote his .... memo because that is part of what he ... was employed to do.”). Her speech at the press conference was her own. Cf. Pleasant Grove City v. Sum-mum, 129 S.Ct. 1125, 1133, 1134, 172 L.Ed.2d 853 (2009) (government speech is financed, commissioned or controlled by the government). Because retaliation for this kind of speech violates the First Amendment as incorporated into the Due Process Clause, Congress has the power to provide a private remedy for it. Georgia, 546 U.S. at 158, 126 S.Ct. 877.

Conclusion

Each of Jones and Ward’s claims allege actual violations of the Fourteenth Amendment. GERA has validly abrogated Alaska’s sovereign immunity with respect to these claims. The petition for review is therefore denied and the case is remanded to the EEOC for further proceedings.

DENIED.

1 . A remand order is not a final agency decision, and so would not normally fall within our jurisdiction. Because this remand order turns on a claim of sovereign immunity, however, a version of the collateral order doctrine provides a basis for our jurisdiction here. See Cohen v. Beneficial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993) ("States ... may take advantage of the collateral order doctrine to appeal a district court order denying a claim of Eleventh Amendment immunity.”). Although the collateral order doctrine is understood as a "construction” of 28 U.S.C. § 1291, Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994) (internal citation omitted), it is also applicable by analogy in the context of non-final agency determinations that meet the standards articulated in Cohen. See, e.g., Fed. Trade Comm’n v. Standard Oil Co. of Cal, 449 U.S. 232, 246, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980); Meredith v. Fed. Mine Safety & Health Rev. Comm’n, 177 F.3d 1042, 1050 (D.C.Cir.1999). Because the EEOC's remand order turns on Alaska's claim of sovereign immunity, and because it otherwise meets Cohen's requirements — it is "conclusive ... [and] resolve[s an] important question[ ] completely separate from the merits ... [that would be] effectively unreviewable on appeal from final judgment in the underlying action,” Digital, 511 U.S. at 867, 114 S.Ct. 1992 — we may review it.

2 . We have independently determined that this assumption is plausible. State government employees who file a claim with the EEOC are subject to procedures that are quite different from those applicable to claims against private employers. Compare 29 C.F.R. Part 1603 with 29 C.F.R. Part 1601. The latter procedures are similar to mediation, whereas the former are adjudicative, much like those in Federal Maritime Commission.

3 . As the fifth vote in the majority, Justice Scalia's view as to the meaning of the Court’s opinion (as expressed in his concurrence) is entitled to substantial, if not controlling, weight.

4 . We need not and do not decide whether other types of sexual harassment claims brought against governmental entities under Title VII or GERA also state violations of the Equal Protection Clause. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (discussing types of sexual harassment claims that can be brought against employers under Title VII); O’Scannlain concurrence at 1072-73.

5 . As Jones's retaliatory discharge claim alleges conduct that would violate the Equal Protection clause, we do not consider whether it also alleges conduct that would violate the First Amendment.

6 . Ward is not seeking relief directly under the First Amendment, just as she and Jones are not seeking relief for discriminatory treatment under the Fourteenth. The relief Ward seeks is under GERA and her theory, as we understand it, is that she was retaliated against for exercising her GERA rights and that this is itself a GERA violation. Whether this is true is a matter to be answered by the EEOC in the first instance; we express no view.

7 . Judge O'Scannlain argues that an aide to a high-ranking official has no First Amendment right to air his policy differences with the administration. O’Scannlain dissent at 1075-76. We needn't consider this interesting hypothetical, because, as the first part of Judge O’Scannlain’s opinion ably explains, “although states can ... adopt policies that treat women differently ... they do not often ... adopt policies to harass women sexually.” Id. at 1072. It's a bit like saying that, when an employee discloses that the Governor is taking bribes, the employee is airing his differences with the official policy of accepting bribes. Ward was exposing the office's alleged illegal practice of tolerating sexual harassment; such criticisms can certainly be the basis for a First Amendment claim. See Johnson v. Multnomah County, 48 F.3d 420, 425-26 (9th Cir.1995) (government employee retaliated against for publicly accusing her boss of running a “good old boy network” can bring a First Amendment claim). Whether Ward’s disloyalty and disruption of the office provided a valid basis for firing her and outweighed her speech interest is not at issue here. We are not deciding whether Ward should prevail on her First Amendment claim; we merely hold that it is a First Amendment claim. See Eng v. Cooley, 552 F.3d 1062, 1070-72 (9th Cir.2009) (to make a First Amendment retaliation claim, government employee must allege that the speech addressed an issue of public concern, was spoken in the employee’s capacity as a private citizen and that the employer took adverse action against the employee because of the speech; burden then shifts to the government to show that its legitimate administrative interests outweigh the employee’s First Amendment rights or that the adverse action would have been taken absent the speech).