Ying Shen v. Oklahoma State Department of Health

W.D. Oklahoma

Ying Shen v. Oklahoma State Department of Health

647 F. Supp. 189, 1985 U.S. Dist. LEXIS 19275

CourtDistrict Court, W.D. Oklahoma

DecidedJune 3, 1985

DocketCIV 85-294-R

StatusPublished

Cited by3 cases

This text of 647 F. Supp. 189 (Ying Shen v. Oklahoma State Department of Health) is published on Counsel Stack Legal Research, covering District Court, W.D. Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Ying Shen v. Oklahoma State Department of Health, 647 F. Supp. 189, 1985 U.S. Dist. LEXIS 19275 (W.D. Okla. 1985).

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Opinion

ORDER

DAVID L. RUSSELL, District Judge.

The Defendant has filed a Motion to Dismiss contending: (1) the Plaintiff’s claim pursuant to 42 U.S.C. §§ 1981 and 1983 are barred by the Eleventh Amendment, and (2) this Court is without jurisdiction to entertain the Plaintiff’s claim pursuant to 42 U.S.C. § 2000e because the Right to Sue notice was improperly issued.

The Defendant, as an arm of the State of Oklahoma, is entitled to Eleventh Amendment immunity and is, therefore, not subject to suit in this forum on an action brought pursuant to §§ 1981 and 1983. Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). Accordingly, the Plaintiff’s claims brought under these above sections are dismissed.

This Court has previously determined that the Right to Sue notice where a governmental agency is to be sued for discrimination must come from the office of the Attorney General, De v. Oklahoma State Department of Health, CIV 83-2417 (W.D.Okla. September 27, 1984) [Available on WESTLAW, DCTU database], and the ninety day filing period does not begin to run until such notice has been received from that office. The Plaintiff cites an amendment to 29 C.F.R. § 1601.28(d) which provides that the EEOC may issue the Right to Sue notice in this situation. However, this language is in conflict with the express language of the statute and, therefore, is without effect. Woods v. State of Missouri Department of Mental Health, 581 F. Supp. 437, 442-3 (W.D.Mo.1984). While the Court is not without jurisdiction to entertain this action, failure to comply with the requirements of Title VII precludes this action absent waiver, estoppel or equitable tolling. See e.g., Pinkard v. Pullman-Standard, 678 F.2d 1211 (5th Cir. 1982), cert. denied, 459 U.S. 1105, 103 S.Ct. 729, 74 L.Ed.2d 954 (1983); Jackson v. Seaboard Coast Line Railroad Co., 678 F.2d 992 (11th Cir.1982).

*190 Accordingly, the Plaintiffs action is dismissed in its entirety.

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ORDER

DAVID L. RUSSELL, District Judge.

The Defendant has filed a Motion to Dismiss contending: (1) the Plaintiff’s claim pursuant to 42 U.S.C. §§ 1981 and 1983 are barred by the Eleventh Amendment, and (2) this Court is without jurisdiction to entertain the Plaintiff’s claim pursuant to 42 U.S.C. § 2000e because the Right to Sue notice was improperly issued.

The Defendant, as an arm of the State of Oklahoma, is entitled to Eleventh Amendment immunity and is, therefore, not subject to suit in this forum on an action brought pursuant to §§ 1981 and 1983. Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). Accordingly, the Plaintiff’s claims brought under these above sections are dismissed.

This Court has previously determined that the Right to Sue notice where a governmental agency is to be sued for discrimination must come from the office of the Attorney General, De v. Oklahoma State Department of Health, CIV 83-2417 (W.D.Okla. September 27, 1984) [Available on WESTLAW, DCTU database], and the ninety day filing period does not begin to run until such notice has been received from that office. The Plaintiff cites an amendment to 29 C.F.R. § 1601.28(d) which provides that the EEOC may issue the Right to Sue notice in this situation. However, this language is in conflict with the express language of the statute and, therefore, is without effect. Woods v. State of Missouri Department of Mental Health, 581 F. Supp. 437, 442-3 (W.D.Mo.1984). While the Court is not without jurisdiction to entertain this action, failure to comply with the requirements of Title VII precludes this action absent waiver, estoppel or equitable tolling. See e.g., Pinkard v. Pullman-Standard, 678 F.2d 1211 (5th Cir. 1982), cert. denied, 459 U.S. 1105, 103 S.Ct. 729, 74 L.Ed.2d 954 (1983); Jackson v. Seaboard Coast Line Railroad Co., 678 F.2d 992 (11th Cir.1982).

*190 Accordingly, the Plaintiffs action is dismissed in its entirety.

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647 F. Supp. 189, 1985 U.S. Dist. LEXIS 19275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ying-shen-v-oklahoma-state-department-of-health-okwd-1985.

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