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-2-

Donna L. Dagnall, Albuquerque, New Mexico, for Plai ntiff-Appellee. Paula I. Forney of Law Offices, Santa Fe, New Mexic o, for DefendantsAppellants. Seth M. Galanter (Jessica Dunsay Silver with him onthe brief), Department of Justice, Washington, D.C., for the Intervenor. Cathy Ventrell-Monsees and Laurie A. McCann of Amer ican Association of Retired Persons, Washington, D.C., on the brief forAmicus Curiae.

Before BRORBY , McKAY, and PORFILIO , Circuit Judges.

BRORBY , Circuit Judge.

In Migneault v. Peck , 158 F.3d 1131, 1139 (10th Cir. 1998), we conclude d the district court correctly denied Eleventh Amendm ent immunity to the University of New Mexico (“University”) against Ms. Migneault’s Age Discrimination in Employment Act (“ADEA”) claim. I n so holding, we followed Tenth Circuit precedent established in Hurd v. Pittsburg State University , 109 F.3d 1540, 1546 (10th Cir. 1997), that “Congress va lidly abrogated Eleventh Amendment immunity by exercising its authority unde r the Fourteenth Amendment to enact the ADEA and by indicating its i ntent to abrogate.” Migneault , 158 F.3d at 1136. Although we acknowledged a spl it 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 of1 We note Kimelinvolved only the issue of whether Congress validl y

abrogated the States’ Eleventh Amendment immunity u nder the ADEA. It did not address that portion of our Migneaultopinion dealing with Ms. Migneault’s 42 U.S.C. § 1983 claim against Dr. Jane Henney. Accor dingly, we reaffirm our holding that Ms. Migneault does not have a cognizab le age discrimination claim under the Equal Protection Clause, independent of t he ADEA.

-3- other circuits that had addressed the issue and held that City of Boerne did not alter our prior decision “that Congress acted withi n its authority under the Fourteenth Amendment to abrogate Eleventh Amendmentimmunity from suits under the ADEA.” Migneault , 158 F.3d at 1139. The Supreme Court, in a plurality opinion, has now resolved the split in th e circuits, holding that while “the ADEA does contain a clear statement of Congres s’ intent to abrogate the States’ immunity, ... the abrogation exceeded Congr ess’ 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 re manded for further consideration in light of Kimel

.

Having carefully considered Ms. Migneault’s ADEA cl aim 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-4-

court’s denial of Eleventh Amendment immunity to th e 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 Plai ntiff-Appellee. Paula I. Forney of Law Offices, Santa Fe, New Mexic o, for DefendantsAppellants. Seth M. Galanter (Jessica Dunsay Silver with him onthe brief), Department of Justice, Washington, D.C., for the Intervenor. Cathy Ventrell-Monsees and Laurie A. McCann of Amer ican Association of Retired Persons, Washington, D.C., on the brief forAmicus Curiae.

Before PORFILIO, McKAY and BRORBY , Circuit Judges.

BRORBY , Circuit Judge.

Plaintiff Joanne Migneault brought this action agai nst the University of New Mexico (“the University”), its Board, and sever al of its employees under 42 U.S.C. § 1983 and the Age Discrimination in Employm ent 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 Amend ment. 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 fro m 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 de fendants’ motions to dismiss-3-

and for summary judgment on these issues. We exerc ise 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 o n 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 Centerfor Non-Invasive Diagnosis. The University, however, permitted her to work thro ugh December 1994. During the time period at issue, she was married to RobertL. Migneault, the Dean of Library Sciences at the University. She was over f orty years old at all relevant times.

In March 1994, Ms. Migneault applied for the positi on of Executive Secretary to the Vice President for Health Sciences at the University. The position was two grades lower on the University per sonnel scale than her position at the Center for Non-Invasive Diagnosis and paid r oughly $10,000 less than her salary at that time. Dr. Henney, the Vice Presiden t of Health Sciences, interviewed four finalist candidates for the Execut ive 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 D r. Henney’s assertion, she never stated during her interview that she could ju st do secretarial work; and she alleges Dr. Henney asked her during her interview w hy she would want to retire in the position.

-4- Dr. Henney ultimately hired Ms. Rose Johnson, who w as 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 forage discrimination. 1

On March 28, 1995, Ms. Migneault filed an age discr imination charge under the ADEA with the Equal Employment Opportunity Commission. After the requisite sixty days elapsed with no EEOC action, M s. Migneault filed this lawsuit claiming the defendants: (1) violated the ADEA by terminating her position and not hiring her for the Executive Secre tary position or for another position (Administrator Coordinator III) because of her age; (2) violated the First Amendment by refusing to consider her for an approp riate position at the University because of her affiliation and support f or 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 Un iversity’s Business Policy2The district court also ruled on the defendant’s motion to strike the

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

-5- Provisions; and (5) retaliated against her for fili ng 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 M s. Migneault’s claims. The defendants subsequently moved for summ ary 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 ord er dismissed all Ms. Migneault’s claims except for her ADEA claim agains t the University and her equal protection claim under § 1983 against Dr. Hen ney. 2

In its motion to dismiss, the University claimed Ms . Migneault’s ADEA suit was barred by Eleventh Amendment immunity. Itclaimed 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 h ave enacted the ADEA pursuant to its powers under the Fourteenth Amendme nt because age is not a suspect class. The district court rejected both ar guments, 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 ame nded, was enacted pursuant to Congress’ legislative power under § 5 of the Fourte enth Amendment. The court thus denied the University’s motion to dismiss on E leventh Amendment grounds.

In the defendants’ summary judgment motion, Dr. Hen ney argued she was immune from Ms. Migneault’s equal protection claim under the doctrine of qualified immunity. She claimed she was entitled t o 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 M s. Migneault’s complaint stated an equal protection violation and the illega lity of age discrimination was clearly established such that a reasonable person i n Dr. Henney’s position would have understood her conduct violated the Equal Prot ection Clause. Consequently, the district court denied Dr. Henney’s motion for s ummary 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 Constit ution restricts federal jurisdiction over “any suit in law or equity, comme nced 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 b y its language the Eleventh Amendment might appear to apply only to cases again st states relying on federal diversity jurisdiction, the Supreme Court has long interpreted it to extend to suits arising under the federal constitution or federal l aw. 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 sov ereign immunity. See-8-

Atascadero State Hosp. v. Scanlon , 473 U.S. 234, 238 (1985). To abrogate Eleventh Amendment immunity, Congress must have “‘u nequivocally 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 Ame ndment 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 reason ably necessary to satisfy bona fide occupational qualifications or is based on rea sonable factors other than age. Id. § 623(f). An employer violating the ADEA may be l iable for legal and equitable relief. Id. § 626(b), (c). The 1974 amendments to the ADEA ad ded 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 n ot dispute the University is an3 Even if we could revisit Hurd, our conclusion the ADEA amendment was

enacted under the Fourteenth Amendment would remainunchanged. The Hurd case involved two opinions of this court addressing whether lawsuits against states under ADEA were barred by Eleventh Amendmentimmunity. 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 abrogat e that immunity when it passed the ADEA, but we did not address under whichauthority Congress acted, i.e. , the Commerce Clause or the Fourteenth Amendment. 29 F.3d at 564. Hurd -9- employer under the ADEA.

The University claims the ADEA did not validly abro gate Eleventh Amendment immunity as it was enacted pursuant to th e Commere Clause rather than the Fourteenth Amendment, and does not contain an unequivocal intent to abrogate. In the alternative, the University argue s the ADEA exceeds Congress’ power to legislate under § 5 of the Fourteenth Amen dment.

We can summarily dispose of the bulk of the Univers ity’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 un equivocally held Congress validly abrogated Eleventh Amendment immunity by ex ercising its authority under the Fourteenth Amendment to enact the ADEA an d 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 , 82II

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 Ele venth Amendment immunity when enacting the ADEA. Id. at 1543-44. We further held Congress exercised it s power to abrogate under § 5 of the Fourteenth Amend ment. Id. at 1544-46. These conclusions were supported by several of our sister circuit court decisions that reviewed the legislative history to the 1974 A DEA 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, po st- Seminole Tribe decisions at the federal circuit level support, rat her 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 Cong ress relied upon [§ 5] of the Fourteenth Amendment in enacting the 1974 ADEA amen dments.”); Goshtasby v. Board of Trustees , 141 F.3d 761, 768 (7th Cir. 1998) (reaffirming it s ruling that Congress passed the 1974 ADEA amendments pursuant t o 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 n ot a valid exercise of Congress’ enforcement powers under § 5 of the Fourt eenth Amendment); Kimel v. Board of Regents , 139 F.3d 1426, 1445-48 (11th Cir. 1998) (Cox, J., dissenting) (same).

-10- 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 priorpanels 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 authorityfor the proposition Congress4Section 5 states: “The Congress shall have powerto enforce, by

appropriate legislation, the provisions of [the Fou rteenth 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 respons e to the Supreme Court’s ruling in Employment Div., Dep’t. of Human Resources of Orego n 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 intere st. 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 applic ability, 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 appl ied 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 relationsh ip 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 prop ortionality between the injury to be prevented or remedied and the means adopted t o that end.” Id. at 2164. “The appropriateness of remedial measures must be c onsidered in light of the evil presented.” Id. at 2169. If the legislation at issue imposes burd ens far greater than the seriousness of any demonstrated constituti onal injury requiring such measures, then the legislation does not remediate t he constitutional violation but creates substantive change in constitutional protec tions. Id. at 2163-70.

In City of Boerne , the Court recognized Congress had the constitutiona l authority to enact legislation under § 5 to enforce the Free Exercise Clause. Id. at 2163. However, the Court found the Religious Freed om Restoration Act’s demanding, compelling interest standard and its bro ad coverage to all laws, even laws of general applicability, were so out of propo rtion to any demonstrated pattern or practice of unconstitutional conduct bur dening the exercise of religion that the Act could not be remedial. Id. at 2171. The legislative record was5 The Equal Protection Clause of the Fourteenth Ame ndment states: “No

State shall ... deny to any person within its juris diction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.

-13- devoid of any showing laws were being passed becaus e of religious bigotry that justified the Religious Freedom Restoration Act’s e xtreme 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’ legi slative authority under § 5 of the Fourteenth Amendment. We first observe Cong ress has the authority under § 5 to legislate against arbitrary age discriminati on. Section 5 empowers Congress to enforce the provisions of the Fourteenth Amendment, including the Equal Protection Clause. 5 The Equal Protection Clause protects against arbi trary discrimination by the states. See Bankers Life & Cas. Co. v. Crenshaw , 486 U.S. 71, 83 (1988) (stating “arbitrary and irrational di scrimination violates the Equal Protection Clause under even our most deferential s tandard of review” in the context of the court’s constitutional review of a s tate statute); City of Cleburne v. Cleburne Living Ctr. , 473 U.S. 432, 439 (1985) (“The Equal Protection C lause of the Fourteenth Amendment commands that no State sha ll ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a-14-

direction that all persons similarly situated shoul d 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 retireme nt provision of a state constitution setting mandatory retirement for judge s 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 clas sification does not mean arbitrary age discrimination is not violative of th e Equal Protection Clause. See City of Cleburne , 473 U.S. at 446 (“Our refusal to recognize the re tarded 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 traditi onal 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 di scrimination is not racial [a suspect class].”). Because arbitrary age discrimination violates the E qual-15-

Protection Clause of the Fourteenth Amendment, we c onclude Congress has the legislative power under § 5 to deter or remedy such discrimination.

We also conclude the ADEA is remedial, as opposed t o substantive, in nature. The ADEA’s scope is limited to the unconst itutional conduct Congress seeks to prevent. Congressional findings and legis lative history indicate arbitrary age discrimination is a real problem in the workpla ce. 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 p ractice” 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 o f the ADEA in detail). Both Senate and House committees in passing the 1974 ADE A amendments cited remarks made by the President in 1972 that: [d]iscrimination based on age -- what some people c all “age-ism” -- can be as great an evil in our society as discrimin ation based on race or religion or any other characteristic which ignor es a person’s unique status as an individual and treats him or he r 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 ....-16-

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 discriminationwas 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. onAging, Improving the Age Discrimination Law, 93d Cong., 1st Sess. 14 (Comm. Print 1973); 118 Cong. Rec. 7,745 (1972) (remarks of Sen. Bentsen)). We recogn ize the legislative history does not provide specific or detailed evidence of d iscrimination; however, specific evidence is not required for Congress to l egislate 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 decisi on 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 adequ ately supported by congressional findings demonstrating a need to reme dy age discrimination.

More important, the means utilized by the ADEA to d eter or remedy age discrimination are proportional to the constitution al violations it seeks to prohibit. Rather than having a sweeping coverage as the Reli gious Freedom Restoration Act, the ADEA is narrowly confined to combat the pr oblem at issue, arbitraryage discrimination. Only arbitrary age discrimination is prohibited by the ADEA.6For example, the ADEA does not make it unlawful f or an employer to discriminate against an employee on the basis of ag e where “age is a bona fide occupational qualification,” where differentiation is based on reasonable factors other than age, or where the employee’s workplace i s in another country and compliance with the ADEA would cause the employer t o violate the laws of that country. 29 U.S.C. § 623(f)(1).

-17- Age discrimination that can be supported by non-arb itrary 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 cond uct, arbitrary age discrimination among older workers, that it seeks to prevent. As we conclude the ADEA is remedial, Congress acted within its enforcement pow ers 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 f rom suits under the ADEA. We recognize there is a split in the circuit s 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;7Our 28 U.S.C. § 1291 jurisdiction is appropriatel y exercised over this

interlocutory claim because the district court’s de cision 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 Univer sity.

Qualified Immunity Dr. Henney argues she is immune from Ms. Migneault’ s equal protection claim under the doctrine of qualified immunity. Th e doctrine of qualified immunity shields government officials from suit whe n their conduct does not “‘violate clearly established statutory or constitu tional 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 ratherthan a mere defense to liability.” Mitchell v. Forsyth , 472 U.S. 511, 526 (1985). The doctrine allows courts to expeditiously weed out suits against gove rnment officials which fail to establish a violation of a clearly established righ t 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 o n an issue of law, as in this
case, 7the decision is immediately appealable as a “final decision” under 28immunity was based on an issue of law rather than s ufficiency of the evidence.

The district court denied summary judgment to Dr. H enney on the basis the illegality of age discrimination was clearly establ ished at the time Dr. Henney allegedly discriminated against Ms. Migneault.

-19- U.S.C. § 1291. Patrick v. Miller , 953 F.2d 1240, 1243 (10th Cir. 1992).

We review district court orders denying qualified i mmunity 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 favor able to the nonmoving party. Id. However, we treat summary judgment rulings involv ing a qualified immunity defense somewhat differently than other summary jud gment rulings. Id.

Our review of the district court’s ruling denying q ualified immunity on summary judgment consists of two inquiries directedtoward the plaintiff. Once the defendant pleads qualified immunity, the burden shifts to the plaintiff to demonstrate (1) the defendant’s conduct violated th e 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 plai ntiff fails to carry either part of his two-part burden, the defendant is entitled to q ualified immunity.” Albright v. Rodriguez , 51 F.3d 1531, 1535 (10th Cir. 1995). To show a r ight is clearly-20-

established, Ms. Migneault must cite to Supreme Cou rt 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 conto urs of the right [the official is alleged to have violated ] must be sufficiently clear that a reasonable official would understand that what he i s doing violates that right.” Anderson v. Creighton , 483 U.S. 635, 640 (1987.)

Dr. Henney argues Ms. Migneault failed her burden o f 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, indep endent of the ADEA. We
agree.

Neither the Supreme Court nor this court have squar ely 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 e mployment. For numerous, well-founded reasons we need not repeat here, both the Fourth and Fifth Circuits have concluded that age discrimination claims broug ht under § 1983 are preempted by the ADEA. See Lafleur v. Texas Dep’t of Health , 126 F.3d 758,8In support of her § 1983 claim, Ms. Migneault rel ies 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 stat e statutes under the Fourteenth Amendment Equal Protection Cla use. See Bankers Life , 486 U.S. at 80-85 (denying equal protection challenge a gainst 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 municip al 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 Claus e where, as here, the ADEA provides a comprehensive statutory scheme to addres ses her age discrimination claims.

-21- 760 (5th Cir. 1997) (granting qualified immunity fr om Equal Protection claim for age discrimination because the ADEA provides the so le 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 o f 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 Ne w Mexico; we REVERSE the part of the district court’s order denying qual ified immunity to Dr. Henney and REMAND with instructions to dismiss Ms. Migneault’s § 198 3 claim against-22-

Dr. Henney for the reasons stated.