UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

Office of the Clerk

Byron White United States Courthouse

Denver, Colorado 80257

(303) 844-3157

Patrick J. Fisher, Jr. Elisabeth A. Shumaker

 Clerk of Court Chief Deputy Clerk

February 25, 2000

TO: ALL RECIPIENTS OF THE CAPTIONED OPINION

RE: No. 97-2099; Migneault v. Peck, et al.

D.C. No. CIV-96-385-JC

The court’s Opinion on Remand was filed and judgment entered today in the

captioned case. A copy of the opinion is enclosed.

This court issued a written, signed opinion on October 23, 1998. A petition for

writ of certiorari was filed in the Supreme Court on January 27, 1999. The Supreme

Court opinion, which was filed January 18, 2000, ordered judgment vacated with costs

and remanded for further consideration.

The Opinion on Remand directs the mandate to issue forthwith. The district court

shall acknowledge receipt of this mandate by file stamping and returning the enclosed

copy of this letter. Any original record will be returned to you at a later date.

Sincerely,

Patrick J. Fisher, Jr.

Clerk of Court

By:

 Nicole Allison

 Deputy Clerk

Enclosure
F I L E D

United States Court of Appeals

Tenth Circuit

FEB 25 2000

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOANNE B. MIGNEAULT,

Plaintiff-Appellee,

v.

RICHARD PECK, President; DAVID L. McKINNEY,

Vice President for Business and Finance; PAUL ROTH,

M.D., Dean of the School of Medicine; ROMEO ORTIZ,

Director of Human Resources,

Defendants,

and

UNIVERSITY OF NEW MEXICO; JANE E. HENNEY,

M.D., Vice President for Health Sciences,

Defendants-Appellants,

-------------------

UNITED STATES OF AMERICA,

Intervenor,

AMERICAN ASSOCIATION OF RETIRED PERSONS,

Amicus Curiae.

No. 97-2099

OPINION ON REMAND
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Donna L. Dagnall, Albuquerque, New Mexico, for Plaintiff-Appellee.

Paula I. Forney of Law Offices, Santa Fe, New Mexico, for DefendantsAppellants.

Seth M. Galanter (Jessica Dunsay Silver with him on the brief), Department of

Justice, Washington, D.C., for the Intervenor.

Cathy Ventrell-Monsees and Laurie A. McCann of American Association of

Retired Persons, Washington, D.C., on the brief for Amicus Curiae.

Before BRORBY, McKAY, and PORFILIO, Circuit Judges.

BRORBY, Circuit Judge.

In Migneault v. Peck , 158 F.3d 1131, 1139 (10th Cir. 1998), we concluded

the district court correctly denied Eleventh Amendment immunity to the

University of New Mexico (“University”) against Ms. Migneault’s Age

Discrimination in Employment Act (“ADEA”) claim. In so holding, we followed

Tenth Circuit precedent established in Hurd v. Pittsburg State University , 109

F.3d 1540, 1546 (10th Cir. 1997), that “Congress validly abrogated Eleventh

Amendment immunity by exercising its authority under the Fourteenth

Amendment to enact the ADEA and by indicating its intent to abrogate.” 

Migneault , 158 F.3d at 1136. Although we acknowledged a split in the circuits

on the issue of whether the Supreme Court’s decision in City of Boerne v. Flores ,

521 U.S. 507 (1997) superseded our holding in Hurd , we joined the majority of
1

 We note Kimel involved only the issue of whether Congress validly

abrogated the States’ Eleventh Amendment immunity under the ADEA. It did not

address that portion of our Migneault opinion dealing with Ms. Migneault’s 42

U.S.C. § 1983 claim against Dr. Jane Henney. Accordingly, we reaffirm our

holding that Ms. Migneault does not have a cognizable age discrimination claim

under the Equal Protection Clause, independent of the ADEA.

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other circuits that had addressed the issue and held that City of Boerne did not

alter our prior decision “that Congress acted within its authority under the

Fourteenth Amendment to abrogate Eleventh Amendment immunity from suits

under the ADEA.” Migneault , 158 F.3d at 1139. The Supreme Court, in a

plurality opinion, has now resolved the split in the circuits, holding that while

“the ADEA does contain a clear statement of Congress’ intent to abrogate the

States’ immunity, ... the abrogation exceeded Congress’ authority under § 5 of

the Fourteenth Amendment.” Kimel v. Florida Board of Regents , 528 U.S. ___,

___, 120 S. Ct. 631, 634 (2000). Accordingly, the Supreme Court vacated our

decision in Migneault , University of New Mexico Bd. of Regents v. Migneault ,

___ U.S. ___, 2000 WL 29245 (Jan. 18, 2000), and remanded for further

consideration in light of Kimel .

Having carefully considered Ms. Migneault’s ADEA claim in light of

Kimel v. Florida Board of Regents ,

1

 we conclude she cannot maintain her suit

against the University, a state employer. We therefore REVERSE the district
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court’s denial of Eleventh Amendment immunity to the University and remand

for further proceedings consistent with the opinion of the United States Supreme

Court.

The mandate shall issue forthwith.
F I L E D

United States Court of Appeals

Tenth Circuit

OCT 23 1998

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOANNE B. MIGNEAULT,

Plaintiff-Appellee,

v.

RICHARD PECK, President; DAVID L. McKINNEY,

Vice President for Business and Finance; PAUL ROTH,

M.D., Dean of the School of Medicine; ROMEO ORTIZ,

Director of Human Resources,

Defendants,

and

UNIVERSITY OF NEW MEXICO; JANE E. HENNEY,

M.D., Vice President for Health Sciences,

Defendants-Appellants,

-------------------

UNITED STATES OF AMERICA,

Intervenor,

AMERICAN ASSOCIATION OF RETIRED PERSONS,

Amicus Curiae.

No. 97-2099

Appeal from the United States District Court

for the District of New Mexico

(D.C. No. CIV-96-385-JC)
-2-

Donna L. Dagnall, Albuquerque, New Mexico, for Plaintiff-Appellee.

Paula I. Forney of Law Offices, Santa Fe, New Mexico, for DefendantsAppellants.

Seth M. Galanter (Jessica Dunsay Silver with him on the brief), Department of

Justice, Washington, D.C., for the Intervenor.

Cathy Ventrell-Monsees and Laurie A. McCann of American Association of

Retired Persons, Washington, D.C., on the brief for Amicus Curiae.

Before PORFILIO, McKAY and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

Plaintiff Joanne Migneault brought this action against the University of

New Mexico (“the University”), its Board, and several of its employees under 42

U.S.C. § 1983 and the Age Discrimination in Employment Act (“ADEA”), 29

U.S.C. §§ 621-634. She alleged, inter alia, the defendants failed to hire her for

an employment position due to age discrimination in violation of the ADEA and

the Equal Protection Clause of the Fourteenth Amendment. This appeal arises out

of the district court’s interlocutory order denying (1) Eleventh Amendment

immunity to defendant University from Ms. Migneault’s ADEA claim, and (2)

qualified immunity to defendant Dr. Jane Henney from Ms. Migneault’s § 1983

claim alleging a violation of her equal protection rights. The University and Dr.

Henney appeal the district court’s denial of the defendants’ motions to dismiss
-3-

and for summary judgment on these issues. We exercise jurisdiction pursuant to

28 U.S.C. § 1291. We affirm in part and reverse in part.

BACKGROUND

Ms. Migneault was an employee of the University, a state institution, from

March 1982 through December 1994. She was placed on lay-off status in March

1994 and laid off in June 1994, after the University decided to eliminate her

position as Assistant to the Director of the Center for Non-Invasive Diagnosis. 

The University, however, permitted her to work through December 1994. During

the time period at issue, she was married to Robert L. Migneault, the Dean of

Library Sciences at the University. She was over forty years old at all relevant

times.

In March 1994, Ms. Migneault applied for the position of Executive

Secretary to the Vice President for Health Sciences at the University. The

position was two grades lower on the University personnel scale than her position

at the Center for Non-Invasive Diagnosis and paid roughly $10,000 less than her

salary at that time. Dr. Henney, the Vice President of Health Sciences,

interviewed four finalist candidates for the Executive Secretary position,

including Ms. Migneault. Three of the four candidates were over the age of forty. 
1

 She claims the reasons were pretextual because: she was a better

qualified candidate than Ms. Johnson; contrary to Dr. Henney’s assertion, she

never stated during her interview that she could just do secretarial work; and she

alleges Dr. Henney asked her during her interview why she would want to retire

in the position.

-4-

Dr. Henney ultimately hired Ms. Rose Johnson, who was under forty years old. 

Ms. Migneault was told she was not offered the job because she was overqualified

and because there was a feeling she would not be happy in the position. Ms.

Migneault alleges these reasons were pretextual for age discrimination.1

On March 28, 1995, Ms. Migneault filed an age discrimination charge

under the ADEA with the Equal Employment Opportunity Commission. After the

requisite sixty days elapsed with no EEOC action, Ms. Migneault filed this

lawsuit claiming the defendants: (1) violated the ADEA by terminating her

position and not hiring her for the Executive Secretary position or for another

position (Administrator Coordinator III) because of her age; (2) violated the First

Amendment by refusing to consider her for an appropriate position at the

University because of her affiliation and support for the Center for Non-Invasive

Diagnosis and her marriage to a Dean on campus; (3) violated the Equal

Protection Clause by violating her First Amendment rights and the ADEA; (4)

violated her procedural and substantive due process rights as guaranteed by the

Fifth and Fourteenth Amendments by violating the University’s Business Policy
2

 The district court also ruled on the defendant’s motion to strike the

plaintiff’s affidavit which is not at issue in this appeal.

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Provisions; and (5) retaliated against her for filing a charge with the Equal

Employment Opportunity Commission by failing to return her from layoff status.

On June 13, 1996, the defendants moved to dismiss Ms. Migneault’s

claims. The defendants subsequently moved for summary judgment on December

2, 1996. The district court ruled on both motions together, granting them in part

and denying them in part. The district court’s order dismissed all Ms.

Migneault’s claims except for her ADEA claim against the University and her

equal protection claim under § 1983 against Dr. Henney.2

In its motion to dismiss, the University claimed Ms. Migneault’s ADEA

suit was barred by Eleventh Amendment immunity. It claimed Congress did not

validly abrogate states’ Eleventh Amendment immunity since the ADEA was not

enacted pursuant to the Fourteenth Amendment under which Congress derives its

sole constitutional authority to abrogate. 
-6-

The University further claimed Congress could not have enacted the ADEA

pursuant to its powers under the Fourteenth Amendment because age is not a

suspect class. The district court rejected both arguments, relying on Hurd v.

Pittsburgh State Univ., 29 F.3d 564 (10th Cir.), cert. denied, 513 U.S. 930 (1994),

where this court specifically held the ADEA, as amended, was enacted pursuant to

Congress’ legislative power under § 5 of the Fourteenth Amendment. The court

thus denied the University’s motion to dismiss on Eleventh Amendment grounds.

In the defendants’ summary judgment motion, Dr. Henney argued she was

immune from Ms. Migneault’s equal protection claim under the doctrine of

qualified immunity. She claimed she was entitled to the immunity because Ms.

Migneault failed to show Dr. Henney’s actions violated clearly established law. 

The district court rejected Dr. Henney’s argument, ruling she was not entitled to

qualified immunity. In doing so, the court found Ms. Migneault’s complaint

stated an equal protection violation and the illegality of age discrimination was

clearly established such that a reasonable person in Dr. Henney’s position would

have understood her conduct violated the Equal Protection Clause. Consequently,

the district court denied Dr. Henney’s motion for summary judgment on this issue.
-7-

ANALYSIS

Eleventh Amendment Immunity

We review de novo the district court’s denial of a motion to dismiss for

lack of subject matter jurisdiction, see Brumark Corp. v. Samson Resources

Corp., 57 F.3d 941, 944 (10th Cir. 1995), and the claim that a suit is barred by the

Eleventh Amendment. Powder River Basin Resource Council v. Babbitt, 54 F.3d

1477, 1483 (10th Cir. 1995).

The Eleventh Amendment to the United States Constitution restricts federal

jurisdiction over “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. Although by its language the Eleventh

Amendment might appear to apply only to cases against states relying on federal

diversity jurisdiction, the Supreme Court has long interpreted it to extend to suits

arising under the federal constitution or federal law. See Seminole Tribe of

Florida v. Florida, 517 U.S. 44, 54 (1996) (citing Hans v. Louisiana, 134 U.S. 1,

11-14 (1890)).

Eleventh Amendment immunity is not absolute. A state may consent to be

sued in federal court, or Congress may abrogate sovereign immunity. See
-8-

Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 (1985). To abrogate

Eleventh Amendment immunity, Congress must have “‘unequivocally expresse[d]

its intent to abrogate the immunity,’” and “acted ‘pursuant to a valid exercise of

power.’” Seminole Tribe, 517 U.S. at 55 (quoting Green v. Mansour, 474 U.S.

64, 68 (1985)) (alteration in original). After the Court’s ruling in Seminole Tribe,

it is clear Congress may only abrogate Eleventh Amendment immunity when it

acts pursuant to its legislative authority under § 5 of the Fourteenth Amendment. 

Id. at 59, 65-66.

The ADEA makes it unlawful for an employer “to fail or refuse to hire or to

discharge any individual or otherwise discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of employment,

because of such individual’s age.” 29 U.S.C. § 623(a)(1). The statute excludes

from its coverage age discrimination that is reasonably necessary to satisfy bona

fide occupational qualifications or is based on reasonable factors other than age. 

Id. § 623(f). An employer violating the ADEA may be liable for legal and

equitable relief. Id. § 626(b), (c). The 1974 amendments to the ADEA added to

the definition of employer, a State, its political subdivisions, agencies or

instrumentalities. Pub. L. 93-259, § 28(a)(1)-(4), Apr. 8, 1974, 88 Stat. 55

(codified as 29 U.S.C. § 630(b)). The parties do not dispute the University is an
3

 Even if we could revisit Hurd, our conclusion the ADEA amendment was

enacted under the Fourteenth Amendment would remain unchanged. The Hurd

case involved two opinions of this court addressing whether lawsuits against

states under ADEA were barred by Eleventh Amendment immunity. See Hurd v.

Pittsburg State Univ., 29 F.3d 564 (10th Cir. 1994) (Hurd I); Hurd v. Pittsburg

State Univ., 109 F.3d 1540 (10th Cir. 1997) (Hurd II). In Hurd I, a pre-Seminole

Tribe opinion, we concluded Congress intended to abrogate that immunity when it

passed the ADEA, but we did not address under which authority Congress acted,

i.e., the Commerce Clause or the Fourteenth Amendment. 29 F.3d at 564. Hurd

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employer under the ADEA.

The University claims the ADEA did not validly abrogate Eleventh

Amendment immunity as it was enacted pursuant to the Commere Clause rather

than the Fourteenth Amendment, and does not contain an unequivocal intent to

abrogate. In the alternative, the University argues the ADEA exceeds Congress’

power to legislate under § 5 of the Fourteenth Amendment.

We can summarily dispose of the bulk of the University’s argument since

we have already ruled on this precise issue. In Hurd v. Pittsburg State University,

109 F.3d 1540, 1546 (10th Cir. 1997), this court unequivocally held Congress

validly abrogated Eleventh Amendment immunity by exercising its authority

under the Fourteenth Amendment to enact the ADEA and by indicating its intent

to abrogate. As another panel of this circuit has already decided this issue, we

cannot address the University’s claim absent en banc reconsideration or a

superseding contrary decision by the Supreme Court.3 Finley v. United States, 82
II revisited the Hurd I ruling in light of the intervening Seminole Tribe decision. 

109 F.3d at 1542. In Hurd II, we applied the Seminole Tribe analysis and

concluded Congress clearly intended to abrogate Eleventh Amendment immunity

when enacting the ADEA. Id. at 1543-44. We further held Congress exercised its

power to abrogate under § 5 of the Fourteenth Amendment. Id. at 1544-46. 

These conclusions were supported by several of our sister circuit court decisions

that reviewed the legislative history to the 1974 ADEA amendments in detail. Id.

at 1545-46 (citing, inter alia, Davidson v. Board of Governors, 920 F.2d 441, 443

(7th Cir. 1990); Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694, 699-700 (1st

Cir. 1983); Arritt v. Grisell, 567 F.2d 1267, 1270-71 (4th Cir. 1977)).

Furthermore, contrary to the University’s claim, post-Seminole Tribe

decisions at the federal circuit level support, rather than question, the Hurd II

decision. See Coger v. Board of Regents, 154 F.3d 296 (6th Cir. 1998); Scott v.

University of Miss., 148 F.3d 493 (5th Cir. 1998); Keeton v. University of Nevada

Sys., 150 F.3d 1055, 1057 (9th Cir. 1998) (“The legislative history and

development of the ADEA clearly establish that Congress relied upon [§ 5] of the

Fourteenth Amendment in enacting the 1974 ADEA amendments.”); Goshtasby v.

Board of Trustees, 141 F.3d 761, 768 (7th Cir. 1998) (reaffirming its ruling that

Congress passed the 1974 ADEA amendments pursuant to authority under the

Fourteenth Amendment). But see Humenansky v. Regents of the Univ. of Minn.,

152 F.3d 822 (8th Cir. 1998) (holding the ADEA is not a valid exercise of

Congress’ enforcement powers under § 5 of the Fourteenth Amendment); Kimel v.

Board of Regents, 139 F.3d 1426, 1445-48 (11th Cir. 1998) (Cox, J., dissenting)

(same).

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F.3d 966, 974 (10th Cir. 1996) (“[A]n overruling of prior Tenth Circuit precedent

... lies beyond the power of this tribunal.”); In re Smith, 10 F.3d 723, 724 (10th

Cir. 1993) (“We are bound by the precedent of prior panels absent en banc

reconsideration or a superseding contrary decision by the Supreme Court.”), cert.

denied, 513 U.S. 807 (1994).

The University claims City of Boerne v. Flores, ___ U.S. ___, 117 S. Ct.

2157 (1997), is superseding Supreme Court authority for the proposition Congress
4

 Section 5 states: “The Congress shall have power to enforce, by

appropriate legislation, the provisions of [the Fourteenth Amendment].” U.S.

Const. amend. XIV, § 5.

-11-

exceeded its authority under § 5 of the Fourteenth Amendment in enacting the

ADEA.

In City of Boerne, the Court struck down the Religious Freedom

Restoration Act of 1993, 42 U.S.C. § 2000bb et seq., on the grounds its enactment

exceeded Congress’ power to legislate under § 5 of the Fourteenth Amendment.4

City of Boerne, ___ U.S. at ___, 117 S. Ct. at 2169-72. Congress enacted the

Religious Freedom Restoration Act in direct response to the Supreme Court’s

ruling in Employment Div., Dep’t. of Human Resources of Oregon v. Smith, 494

U.S. 872 (1990). Id. at 2160. In Smith, the Court held the Free Exercise Clause

does not require neutral, generally applicable laws that burden religious practices

to be justified by a compelling governmental interest. Smith, 494 U.S. at 883-85.

To protect religious freedom after Smith, the Religious Freedom Restoration Act

required all laws, including laws of general applicability, which substantially

burden a person’s exercise of religion be justified by furthering a compelling

governmental interest and be the least restrictive means to further that interest. 

City of Boerne, ___ U.S. at ___, 117 S. Ct. at 2162. The Act applied to all

federal, state, and local laws. Id. It therefore imposed a demanding standard on a
-12-

wide variety of laws which might have no relationship to religious bigotry.

In striking down the Religious Freedom Restoration Act, the Court

explained Congress may only enact legislation under § 5 that deters or remedies

violations of the Fourteenth Amendment. Id. at 2163-64. To qualify as remedial

legislation, “[t]here must be a congruence and proportionality between the injury

to be prevented or remedied and the means adopted to that end.” Id. at 2164. 

“The appropriateness of remedial measures must be considered in light of the evil

presented.” Id. at 2169. If the legislation at issue imposes burdens far greater

than the seriousness of any demonstrated constitutional injury requiring such

measures, then the legislation does not remediate the constitutional violation but

creates substantive change in constitutional protections. Id. at 2163-70.

In City of Boerne, the Court recognized Congress had the constitutional

authority to enact legislation under § 5 to enforce the Free Exercise Clause. Id. at

2163. However, the Court found the Religious Freedom Restoration Act’s

demanding, compelling interest standard and its broad coverage to all laws, even

laws of general applicability, were so out of proportion to any demonstrated

pattern or practice of unconstitutional conduct burdening the exercise of religion

that the Act could not be remedial. Id. at 2171. The legislative record was
5

 The Equal Protection Clause of the Fourteenth Amendment states: “No

State shall ... deny to any person within its jurisdiction the equal protection of the

laws.” U.S. Const. amend. XIV, § 1.

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devoid of any showing laws were being passed because of religious bigotry that

justified the Religious Freedom Restoration Act’s extreme measures. Id. at 2169. 

Therefore, the Court held the legislation exceeded Congress’ legislative powers

under § 5 of the Fourteenth Amendment. Id. at 2172.

Applying the City of Boerne analysis to evaluate the constitutionality of the

ADEA, we conclude the ADEA is within Congress’ legislative authority under § 5

of the Fourteenth Amendment. We first observe Congress has the authority under

§ 5 to legislate against arbitrary age discrimination. Section 5 empowers

Congress to enforce the provisions of the Fourteenth Amendment, including the

Equal Protection Clause.5 The Equal Protection Clause protects against arbitrary

discrimination by the states. See Bankers Life & Cas. Co. v. Crenshaw, 486 U.S.

71, 83 (1988) (stating “arbitrary and irrational discrimination violates the Equal

Protection Clause under even our most deferential standard of review” in the

context of the court’s constitutional review of a state statute); City of Cleburne v.

Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (“The Equal Protection Clause of

the Fourteenth Amendment commands that no State shall ‘deny to any person

within its jurisdiction the equal protection of the laws,’ which is essentially a
-14-

direction that all persons similarly situated should be treated alike.’”). More

specifically, the Equal Protection Clause protects against arbitrary age

discrimination. See Gregory v. Ashcroft, 501 U.S. 452, 470 (1991) (recognizing

arbitrary age discrimination may violate the Equal Protection Clause when the

Court applied the rational basis test to a retirement provision of a state

constitution setting mandatory retirement for judges at age seventy); see also

Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 314 (1976) (per

curiam) (rational basis test applied to a state law mandating retirement at age

fifty).

The fact age is not a suspect or quasi-suspect classification does not mean

arbitrary age discrimination is not violative of the Equal Protection Clause. See

City of Cleburne, 473 U.S. at 446 (“Our refusal to recognize the retarded as a

quasi-suspect class does not leave them entirely unprotected from invidious

discrimination.”); Goshtasby, 141 F.3d at 771 (“The Supreme Court’s equal

protection jurisprudence is not confined to traditional suspect or quasi-suspect

classifications.”); Crawford v. Indiana Dep’t of Corrections, 115 F.3d 481, 487

(7th Cir. 1997) (stating “invidious discrimination by governmental agencies ...

violates the equal protection clause even if the discrimination is not racial [a

suspect class].”). Because arbitrary age discrimination violates the Equal
-15-

Protection Clause of the Fourteenth Amendment, we conclude Congress has the

legislative power under § 5 to deter or remedy such discrimination.

We also conclude the ADEA is remedial, as opposed to substantive, in

nature. The ADEA’s scope is limited to the unconstitutional conduct Congress

seeks to prevent. Congressional findings and legislative history indicate arbitrary

age discrimination is a real problem in the workplace. In its statement of findings

and purpose to the ADEA, Congress found “arbitrary age limits regardless of

potential for job performance has become a common practice” and the “incidence

of unemployment, especially long-term unemployment ... is, relative to the

younger ages, high among older workers.” 29 U.S.C. § 621(a)(2), (3). Congress’

findings were based on extensive factfinding by the Executive Branch and

Congress of age discrimination in employment. EEOC v. Wyoming, 460 U.S. 226,

229-233 (1983) (reviewing the legislative history of the ADEA in detail). Both

Senate and House committees in passing the 1974 ADEA amendments cited

remarks made by the President in 1972 that:

[d]iscrimination based on age -- what some people call “age-ism” --

can be as great an evil in our society as discrimination based on race

or religion or any other characteristic which ignores a person’s

unique status as an individual and treats him or her as a member of

some arbitrarily defined group. Especially in the employment field,

discrimination based on age is cruel and self-defeating; it destroys

the spirit of those who want to work ....
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S. Rep. No. 93-690 at 55, H.R. Rep. No. 93-913, reprinted in 1974 U.S.C.C.A.N.

2811, 2849. Congress recognized age discrimination was occurring in the public

sector as well. See Goshtasby, 141 F.3d at 772 (citing S. Rep. No. 846, 93d

Cong., 2d Sess. 112 (1974); Senate Special Comm. on Aging, Improving the Age

Discrimination Law, 93d Cong., 1st Sess. 14 (Comm. Print 1973); 118 Cong. Rec.

7,745 (1972) (remarks of Sen. Bentsen)). We recognize the legislative history

does not provide specific or detailed evidence of discrimination; however,

specific evidence is not required for Congress to legislate under § 5. “Judicial

deference, in most cases, is based not on the state of the legislative record

Congress compiles but ‘on due regard for the decision of the body constitutionally

appointed to decide.’” City of Boerne, ___ U.S. at ___, 117 S. Ct. at 2170

(quoting Oregon v. Mitchell, 400 U.S. 112, 207 (1970) (opinion of Harlan, J.).

Giving such deference, we believe the ADEA is adequately supported by

congressional findings demonstrating a need to remedy age discrimination.

More important, the means utilized by the ADEA to deter or remedy age

discrimination are proportional to the constitutional violations it seeks to prohibit. 

 Rather than having a sweeping coverage as the Religious Freedom Restoration

Act, the ADEA is narrowly confined to combat the problem at issue, arbitrary age

discrimination. Only arbitrary age discrimination is prohibited by the ADEA. 
6

 For example, the ADEA does not make it unlawful for an employer to

discriminate against an employee on the basis of age where “age is a bona fide

occupational qualification,” where differentiation is based on reasonable factors

other than age, or where the employee’s workplace is in another country and

compliance with the ADEA would cause the employer to violate the laws of that

country. 29 U.S.C. § 623(f)(1).

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Age discrimination that can be supported by non-arbitrary reasons is not affected.6

See 29 U.S.C. § 623(f). In addition, consistent with congressional findings that

age discrimination especially affects older workers, see id. § 621(1)-(3), the

ADEA limits its coverage to age discrimination for workers who are at least forty

but less than seventy years old, id. § 631(a). Hence, the ADEA is remedial

because its application is proportional to the conduct, arbitrary age discrimination

among older workers, that it seeks to prevent. As we conclude the ADEA is

remedial, Congress acted within its enforcement powers under § 5 of the

Fourteenth Amendment in enacting the ADEA.

We hold, therefore, the City of Boerne decision does not alter our prior

decision in Hurd that Congress acted within its authority under the Fourteenth

Amendment to abrogate Eleventh Amendment immunity from suits under the

ADEA. We recognize there is a split in the circuits on this issue. However, we

join the majority of other appellate courts that have addressed this issue since the

City of Boerne decision. See Coger, 154 F.3d 296; Scott, 148 F.3d 493;
7

 Our 28 U.S.C. § 1291 jurisdiction is appropriately exercised over this

interlocutory claim because the district court’s decision denying qualified

-18-

Goshtasby, 141 F.3d at 769-72; but see Humenansky, 152 F.3d 822 (concluding

the ADEA exceeds Congress’§ 5 powers as defined in City of Boerne); Kimel, 139

F.3d at 1445-48 (Cox, J., dissenting). Accordingly, we affirm the district court’s

denial of Eleventh Amendment immunity to the University.

Qualified Immunity

Dr. Henney argues she is immune from Ms. Migneault’s equal protection

claim under the doctrine of qualified immunity. The doctrine of qualified

immunity shields government officials from suit when their conduct does not

“‘violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Gehl Group v. Koby, 63 F.3d 1528, 1533

(10th Cir. 1995) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). 

Qualified immunity is “an immunity from suit rather than a mere defense to

liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The doctrine allows

courts to expeditiously weed out suits against government officials which fail to

establish a violation of a clearly established right prior to imposing the burdens of

discovery and litigation. Siegert v. Gilley, 500 U.S. 226, 232 (1991). Therefore,

when the district court denies qualified immunity on an issue of law, as in this

case,7

 the decision is immediately appealable as a “final decision” under 28
immunity was based on an issue of law rather than sufficiency of the evidence. 

The district court denied summary judgment to Dr. Henney on the basis the

illegality of age discrimination was clearly established at the time Dr. Henney

allegedly discriminated against Ms. Migneault.

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U.S.C. § 1291. Patrick v. Miller, 953 F.2d 1240, 1243 (10th Cir. 1992).

We review district court orders denying qualified immunity on summary

judgment de novo. Romero v. Fay, 45 F.3d 1472, 1475 (10th Cir. 1995). In our

review of summary judgment rulings, the evidence in the record and inferences

drawn therefrom, are viewed in the light most favorable to the nonmoving party. 

Id. However, we treat summary judgment rulings involving a qualified immunity

defense somewhat differently than other summary judgment rulings. Id.

Our review of the district court’s ruling denying qualified immunity on

summary judgment consists of two inquiries directed toward the plaintiff. Once

the defendant pleads qualified immunity, the burden shifts to the plaintiff to

demonstrate (1) the defendant’s conduct violated the law, and (2) the relevant law

was clearly established when the alleged violation occurred. Clanton v. Cooper,

129 F.3d 1147, 1153 (10th Cir. 1997). “If the plaintiff fails to carry either part of

his two-part burden, the defendant is entitled to qualified immunity.” Albright v.

Rodriguez, 51 F.3d 1531, 1535 (10th Cir. 1995). To show a right is clearly
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established, Ms. Migneault must cite to Supreme Court or Tenth Circuit decisions

on point, or to weight of authority from other courts defining the contours of the

right. Foote v. Spiegel, 118 F.3d 1416, 1424 (10th Cir. 1997). “The contours of

the right [the official is alleged to have violated] must be sufficiently clear that a

reasonable official would understand that what he is doing violates that right.” 

Anderson v. Creighton, 483 U.S. 635, 640 (1987.)

Dr. Henney argues Ms. Migneault failed her burden of identifying a clearly

established right. Specifically, Dr. Henney claims Ms. Migneault failed to show

the law is clearly established that a claim for age discrimination in employment is

cognizable under the Equal Protection Clause, independent of the ADEA. We

agree.

Neither the Supreme Court nor this court have squarely addressed whether

an Equal Protection claim exists independent of an ADEA claim. Other courts

have addressed the issue, however, and in doing so, have refused to recognize

Equal Protection claims for age discrimination in employment. For numerous,

well-founded reasons we need not repeat here, both the Fourth and Fifth Circuits

have concluded that age discrimination claims brought under § 1983 are

preempted by the ADEA. See Lafleur v. Texas Dep’t of Health, 126 F.3d 758,
8

 In support of her § 1983 claim, Ms. Migneault relies on two

distinguishable cases – Bankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71 (1988),

and City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985). Bankers Life

and City of Cleburne each address the constitutionality of certain state statutes

under the Fourteenth Amendment Equal Protection Clause. See Bankers Life, 486

U.S. at 80-85 (denying equal protection challenge against Mississippi’s “penalty

statute,” which requires unsuccessful appellants to pay an additional assessment

of fifteen per cent of the judgment); City of Cleburne. 473 U.S. at 450

(invalidating on equal protection grounds a municipal zoning ordinance that

required a special use permit for the operation of a group home for the mentally

retarded). Neither case stands for the proposition that Ms. Migneault may bring a

§ 1983 claim grounded in the Equal Protection Clause where, as here, the ADEA

provides a comprehensive statutory scheme to addresses her age discrimination

claims.

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760 (5th Cir. 1997) (granting qualified immunity from Equal Protection claim for

age discrimination because the ADEA provides the sole remedy for age

discrimination claims by individuals); Zombro v. Baltimore City Police Dep’t, 868

F.2d 1364, 1369 (4th Cir.), cert. denied, 493 U.S. 850 (1989) (holding the ADEA

provides the exclusive judicial remedy for claims of age discrimination). Ms.

Migneault cites no contrary authority. 8

 We therefore adopt the holding and

rationale of Lafleur v. Texas Dep’t of Health as the law of this circuit, and hold

the clearly established law on this issue operates to defeat Ms. Migneault’s

§ 1983 claim against Dr. Henney.

Accordingly, we AFFIRM the part of the district court’s order denying

Eleventh Amendment immunity to the University of New Mexico; we REVERSE

the part of the district court’s order denying qualified immunity to Dr. Henney

and REMAND with instructions to dismiss Ms. Migneault’s § 1983 claim against
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Dr. Henney for the reasons stated.