United States District Court, D. Nebraska
KATHLEEN M. GRAHAM, Plaintiff,
STATE OF NEBRASKA, OFFICE OF THE GOVERNOR, Defendant.
MEMORANDUM AND ORDER
F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on the defendant's motion for
partial summary judgment pursuant to Fed.R.Civ.P. 56,
Filing No. 16. Defendant seeks dismissal of
plaintiff's federal claim filed under the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. §
621, et seq. Plaintiff filed a complaint and an amended
complaint in District Court of Lancaster County, Nebraska,
containing both the ADEA claim and state law age
discrimination claims. Filing No. 1. Thereafter,
defendant removed this case to federal court, pursuant to the
ADEA claim. During a status conference call with the
magistrate judge, defendant determined that it was entitled
to a sovereign immunity defense on the ADEA claim. Defendant
then amended its answer to allege sovereign immunity and
filed this motion for partial summary judgment.
case involves allegations that Governor Pete Ricketts fired
his administrative assistant, the plaintiff, who was 65 at
the time, telling her the discharge was due to a budget cut.
Plaintiff contends that thereafter the Governor hired a much
younger administrative assistant in her 20's and gave her
a pay increase of $7, 000-8, 000. This person allegedly did
the same duties as the plaintiff, sat at plaintiff's
former desk, and parked in her parking spot.
judgment is appropriate when, viewing the facts and
inferences in the light most favorable to the nonmoving
party, “showing that the materials cited do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact.” Fed.R.Civ.P. 56(c)(1)(B). The plain
language of Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial. Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). “The movant ‘bears the
initial responsibility of informing the district court of the
basis for its motion,' and must identify ‘those
portions of [the record] . . . which it believes demonstrate
the absence of a genuine issue of material fact.'”
Torgerson v. City of Rochester, 643 F.3d 1031, 1042,
(8th Cir. 2011) (en banc) (quoting Celotex, 477 U.S.
at 323). If the movant does so, “the nonmovant must
respond by submitting evidentiary materials that set out
‘specific facts showing that there is a genuine issue
for trial.'” Id. (quoting
Celotex, 477 U.S. at 324). “The inquiry
performed is the threshold inquiry of determining whether
there is the need for a trial-whether, in other words, there
are any genuine factual issues that properly can be resolved
only by a finder of fact because they may reasonably be
resolved in favor of either party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). If
“reasonable minds could differ as to the import of the
evidence, ” summary judgment should not be granted.
Id. at 251.
evidence must be viewed in the light most favorable to the
nonmoving party, giving the nonmoving party the benefit of
all reasonable inferences. Kenney v. Swift Transp.,
Inc., 347 F.3d 1041, 1044 (8th Cir. 2003). “In
ruling on a motion for summary judgment a court must not
weigh evidence or make credibility determinations.”
Id. “Where the unresolved issues are primarily
legal rather than factual, summary judgment is particularly
appropriate.” Koehn v. Indian Hills Cmty.
Coll., 371 F.3d 394, 396 (8th Cir. 2004).
Court has found:
The Eleventh Amendment states that “[t]he Judicial
power of the United States shall not be construed to extend
to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.” U.S. Const.
amend. XI. This immunity is provided to “states, and
state agencies .... not only from suits brought by citizens
of other states, but also from suits brought by their own
citizens.” Doe v. State of Nebraska, 345 F.3d
593, 597 (8th Cir.2003) (citing Hadley v. N. Ark. Cmty.
Technical Coll., 76 F.3d 1437, 1438 (8th Cir.1996)). It
reaches not only state claims brought in federal court
against a state, see Randolph v. Rodgers,
170 F.3d 850, 859 (8th Cir.1999) (citing Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984)),
but also federal claims brought in federal court against a
state, see Doe, 345 F.3d at 597-98.
Eleventh Amendment immunity provides states with a strong
defense against suit in federal court but this immunity
“is not absolute.” Doe, 345 F.3d at 597.
A state may be subject to suit where: (1) the state has
unequivocally waived its sovereign immunity and consented to
suit in federal court; or (2) Congress has unequivocally,
through legislation, abrogated state immunity in order to
effectuate the provisions of the Fourteenth Amendment.
Kentucky v. Graham, 473 U.S. 159, 169 (1985);
Pennhurst, 465 U.S. at 97-100; Burk v.
Beene, 948 F.2d 489, 492-94 (8th Cir.1991).
The Supreme Court has clearly declined to extend the
abrogation principles of Title VII to the ADEA. See
Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91 (2000)
(“[W]e hold that the ADEA is not a valid exercise of
Congress' power under § 5 of the Fourteenth
Amendment. The ADEA's purported abrogation of the
States' sovereign immunity is accordingly invalid....
State employees are protected by state age discrimination
statutes, and may recover money damages from their state
employers, in almost every State of the Union.”).
Glass v. Doe, 2007 WL 2410542 *2 (D. Neb. 2007);
see also Fiedler v. Nebraska Dep't
of Roads, No. 4:08CV3144, 2008 WL 4455605 *2 (D.
Neb. Sept. 30, 2008).
Court notes that the United States Supreme Court has
determined that in a suit brought under state law and
pursuant to 42 U.S.C. § 1983, where the state removed
from state court, such removal constitutes a waiver of
Eleventh Amendment immunity. Lapides v. ...