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Graham v. State

United States District Court, D. Nebraska

December 18, 2018

KATHLEEN M. GRAHAM, Plaintiff,
v.
STATE OF NEBRASKA, OFFICE OF THE GOVERNOR, Defendant.

          MEMORANDUM AND ORDER

          JOSEPH F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE

         This 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.

         The 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.

         STANDARD OF REVIEW

         Summary 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.

         The 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).

         DISCUSSION

         This 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).

         The 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. ...


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