* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited circumstances

set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 96-31060

Summary Calendar

_______________

JENNIFER MISTRETTA and TROY MISTRETTA,

Plaintiffs-Appellees,

VERSUS

STATE OF LOUISIANA,

through the Department of Public Safety and Corrections,

Office of State Police,

and

TIMOTHY BRUNET,

Defendants-Appellants.

_________________________

Appeal from the United States District Court

for the Middle District of Louisiana

(95-CV-754)

_________________________

March 26, 1997

Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

The State of Louisiana and its employee, Timothy Brunet

(jointly referred to as “Louisiana”), appeal the denial of their

FED. R. CIV. P. 12(b)(6) motion to dismiss, claiming that the state
2

is entitled to Eleventh Amendment immunity from the Mistrettas’

title VII suit. Denials of Eleventh Amendment immunity are

appealable under the collateral order doctrine. Puerto Rico

Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144-

45 (1993).

Louisiana asserts that title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. § 2000e et seq., does not contain the

“unmistakable language” that the Supreme Court has held is required

to abrogate Eleventh Amendment immunity. See Atascadero State

Hosp. v. Scanlon, 473 U.S. 234, 243 (1985). Title VII authorizes

suits against a “respondent,” which is defined to include an

“employer.” 42 U.S.C. § 2000e(n). “Employer” is in turn defined

to include a “person engaged in an industry affecting commerce,”

id. § 2000e(b), and “person” encompasses both “governments” and

“governmental agencies,” id. § 2000e(a). Louisiana argues that

although under normal rules of statutory construction this would

constitute sufficiently “unmistakable language,” it fails to meet

the heightened standard imposed by Atascadero.

We need not consider whether, were we to address this issue as

one of first impression, we would decide that the mere authorization of suits against “governments” is the sort of unequivocal

statutory language that Atascadero requires. Prior decisions of

both the Supreme Court and this court foreclose Louisiana's

argument.
3

In Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), the Court held

that Congress had abrogated the states’ Eleventh Amendment immunity

by enacting title VII. Id. at 457. Although the focus of the

decision was congressional power to abrogate under § 5 of the

Fourteenth Amendment, the Court also stated that “the threshold

fact of congressional authorization to sue the State as employer is

clearly present.” Id. at 452 (internal quotations and citations

omitted). This aspect of the decision was confirmed in Quern v.

Jordan, 440 U.S. 332 (1979), where the Court explained that the

Fitzpatrick majority had “found present” “the 'threshold fact of

congressional authorization' to sue the State as employer, because

the statute made explicit reference to the availability of a

private action against state and local governments in the event the

Equal Employment Opportunity Commission or the Attorney General

failed to bring suit or effect a conciliation agreement.” Id. at

344 (quoting Fitzpatrick, 427 U.S. at 452).

Louisiana protests that because Atascadero is the seminal case

on precisely what Congress must do to abrogate state immunity, it

“at the very least modified Fitzpatrick, if not implicitly

overruled it.” We disagree, for nowhere in Atascadero did the

Court even so much as call Fitzpatrick into doubt or question its

affirmation of that decision in Quern. In any case, we are also

bound by Pegues v. Mississippi State Employment Serv., 899 F.2d

1449, 1453 (5th Cir. 1990), in which we stated that the Civil
4

Rights Act of 1964 “clearly abrogates the states' Eleventh

Amendment immunity by providing that courts may award retroactive

monetary relief against state defendants which violate Title VII.”

Id. at 1453. However appealing Louisiana’s argument may be, after

Fitzpatrick and Quern it is addressed to the wrong court.

Accordingly, the denial of the motion to dismiss is AFFIRMED.