IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-50092

THERESA M. SILER-KHODR,

Plaintiff-Appellee,

versus

THE UNIVERSITY OF TEXAS HEALTH SCIENCE

CENTER SAN ANTONIO; ET AL.,

Defendants,

and

THE UNIVERSITY OF TEXAS HEALTH SCIENCE

CENTER SAN ANTONIO,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

August 24, 2001

Before POLITZ, DeMOSS, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

The University of T exas Health Science Center San Antonio (“UTHSCSA” or the

“University”) appeals from a final judgment awarding Dr. Theresa M. Siler-Khodr (“Siler-Khodr”)

$91,000 back pay and $20,000 of compensatory damages, including costs and prejudgment interest,2

because the jury found that UTHSCSA had discriminated against Siler-Khodr on the basis of her

gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (“Title VII”) and

paid her unequally in violation of the Equal Pay Act, 2 9 U.S.C. § 206(d) (“Equal Pay Act” or

“EPA”). For the following reasons, we affirm the judgment.

FACTUAL & PROCEDURAL BACKGROUND

Siler-Khodr began her career at UTHSCSA in the Department of Obstetrics and Gynecology

(“Ob/Gyn Department”) as an assistant professor in 1976. She has a Ph.D. in biochemistry, and she

is a reproductive endocrinologist specializing i n t he area o f hormones involved with the female

reproductive system. Siler-Khodr primarily co nduct s laboratory research in this field. She also

publishes the results of her research, supervises Fellows, and teaches classes. She has also directed

clinical and research laboratories. Siler-Khodr became a Full Professor with tenure in 1986, and her

supervisor is Dr. Robert Schenken (“Schenken”).

Dr. Sydney Shain (“Sydney”) is also in t he Depart ment and joined the University in 1989.

According to UTHSCSA, Sydney was hired in an effort to retain Dr. Rochelle Shain (“Rochelle”),

Sydney’s wife and one of the four Ph.D. researchers in the Ob/Gyn Department. Rochelle informed

Dr. Carl Pauerstein (“Pauerstein”), chair of the Department since 1979, that her husband wanted to

leave his job at the Southwest Foundation for Biological Research in San Antonio where he earned

$80,000 per year. Pauerstein offered Sydney a job with the University at a salary of $83,000, in part,

because he was concerned that Sydney would seek employment outside of San Antonio, causing

Pauerstei n to lose Rochelle. Siler-Khodr’s salary at the time was $64,354. The University also

justifies Sydney and Siler-Khodr’s difference in pay by asserting that Sydney has been more successful

than Siler-Khodr in obtaining grant funding.3

The University currently pays Sydney approximately $20,000 per year more than Siler-Khodr.

He, h o wever, like Siler-Khodr, 1) has a Ph.D. in biochemistry; 2) primarily conducts laboratory

research regarding reproductive endocrinology; 3) publishes the results of his research; 4) supervises

departmental Fellows; 5) teaches classes; and 6) is supervised by Dr. Schenken. Similarly, Pauerstein

testified at trial that Siler-Khodr and Sydney have essentially the same duties and responsibilities.

Siler-Khodr filed suit in state district court against UTHSCSA, alleging in part violations of

Title VII and of the EPA. The University subsequently removed to federal court. At trial, SilerKhodr presented two studies: 1) the Women’s Faculty Association Report conducted by the

University in 1994 and 2) a report and testimony of Dr. Mary Gray (“Gray”), an expert statistician

and Full Professor of mathematics and statistics at American University, in which she conducted a

multiple regression analysis that controlled for a variety of factors.

Both reports indicated that gender significant ly affected faculty salaries at the University.

After adjusting for confounding factors such as rank, degree, tenure, duration in the institution and

age, women tended to earn lower salaries than men. The reports studied salaries university-wide, and

neither of them distinguished faculty salaries among medical specialities. The University contends

that the Women’s Faculty Association report was inherently flawed since, for example, more women

tend to be pediatricians than surgeons at medical schools across the country and at UTHSCSA, and

surgeons make considerably higher salaries than pediatricians. Moreover, UTHSCSA argues that the

report did not analyze salaries within the Ob/Gyn Department and mentioned nothing regarding SilerKhodr’s salary. The University also asserts that Gray’s report speaks only to the salary structure

throughout the University. The report does not speak to the Ob/Gy n Department or the medical

school in particular and does not pertain to Siler-Khodr’s individual salary. In response, Siler-Khodr4

contends that the University offered no expert testimony of its own at trial. Dean James Young

(“Dean Young”), dean of the Medical School, however, testified at trial that he disagreed with the

Women’s Faculty Association study’s conclusion. The University also cross-examined Gray’s report.

A jury subsequently returned a verdict for Siler-Khodr on the issues of sex discrimination

under Title VII and unequal pay under the Equal Pay Act. In addition to ordering back pay in the

amoun t of $91,000 and compensatory damages in the amount of $20,000, it also ordered the

University to equalize Siler-Khodr’s compensation to that of Sydney and to pay her all sums

necessary to accomplish that equalization retroactive to the date the jury returned the verdict. The

district court further awarded Siler-Kh o dr an additional $91,000 in liquidated damages in keeping

with the jury’s finding under the Equal Pay Act, as well as reasonable attorneys’ fees. UTHSCSA

moved for a judgment as a matter of law, pursuant to Rule 50 (a) o f the Federal Rules of Civil

Procedure, that the district court denied. The University now appeals.

DISCUSSION

I. Rule 50(a) Motion and the Sufficiency of Evidence

Rule 50(a) states that “[i]f during a trial by jury a party has been fully heard on an issue and

there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue,

the court may determine the issue against that party and may grant a motion for judgment as a matter

of law. . . .” F E D

. R. C IV

. P. 50(a). This Court reviews de novo the trial court’s ruling on a Rule

50(a) motion. T ravis v. Bd. of Regents of the Univ. of Texas Sys.

, 122 F.3d 259, 263 (5 th Cir. 1997).

Moreover, in reviewing a Rule 50(a) motion, this Court “should review all of the evidence in the

record

. . . [but] must draw all reasonable inferences in favor of the nonmoving party, and it may not

make credibility determinations or weigh the evidence.” R eeves v. Sanderson Plumbing Prod., Inc.

,5

530 U.S. 133, 150 (2000). “Credibility determinations, the weighing of the evidence, and the drawing

of legitimate inferences from the facts are jury functions, not those of a judge.” I d. at 150-51 (citing

Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250-51 (1986)).

The district court refused to grant the University’s Rule 50(a) motion for a judgment as a

matter of law on Siler-Khodr’s claims alleging violations of Title VII and the EPA. Title VII states

that it is unlawful “to discriminate against any individual with respect to his compensation

. . . because

of such individual’s sex.” 42 U.S.C. § 2000e-2(a). Hence, a Title VII claim alleges “individual,

disparate treatment.” P lemer v. Parsons-Gilbane

, 713 F.2d 1127, 1135 (5 th Cir. 1983). Because the

facts in a particular Title VII case will differ, the evidence necessary to prove a prima facie case of

discrimination under Title VII will vary. I d. However, this Court has noted that although a plaintiff

may present:

statistics evidencing an employer’s pattern and practice of

discriminatory conduct, which “may be helpful to a determination of

whether” the alleged discriminatory act against the plaint iff

“conformed to a general pattern of discrimination against” members

of a prot ected group. . . . that evidence is “not determinative of an

employer’s reason for the action taken against the individual

grievant.”

Id. (citing McDonnell Douglas Corp. v. Green

, 411 U.S. 792, 802 (1973) and Terrell v. Feldstein

Co. , 468 F.2d 910, 911 (5 th Cir. 1972)).

In contrast, the EPA has a higher threshold, requiring that an employer not discriminate

“between employees on the basis of sex

. . . for equal work on jobs the performance of which requires

equal skill, effor t , and responsibility, and which are performed under similar working conditions.”

29 U.S.C. § 206(d)(1). In short, it demands that equal wages reward equal work. C orning Glass

W orks v. Brennan

, 417 U.S. 188, 195 (1974). Once a plaintiff has made her prima facie case by6

showing that an employer compensates employees differently for equal work, the burden shifts to the

defendant to “prove by a preponderance of the evidence that the wage differential is justified under

one of the four affirmative defenses set forth in the Equal Pay Act: (1) a seniority system; (2) a merit

system; (3) a system which measures earnings by quantity or quality of production; or (4) any other

factor than sex.” K ovacevich v. Kent State Univ.

, 224 F.3d 806, 826 (6 th Cir. 2000) (citing 29 U.S.C.

§ 206(d)(1)). The EPA’s affirmative defenses have been incorporated into Title VII by the Bennett

Amendment to the Act. I d. at 828. “Generally, [however,] a Title VII claim of wage discrimination

parallels that of an EPA violation.” Id.

A. Statistics

The University contends that the trial court erred when it failed to grant its Rule 50(a) motion

because the evidence was legally insufficient to support the jury’s findings of sex discrimination and

unequal pay. It asserts that the two reports that Siler-Khodr presented regarding gender disparities

in faculty salari es sho wed neither discrimination in the Ob/Gyn Department nor by Pauerstein.

UTHSCSA asserts that Siler-Khodr, therefore, failed to prove intentional discrimination under Title

VII. As supporting aut ho rit y, the University cites three cases, Z ahorik v. Cornell University

, 729

F.2d 85, 95 (2d Cir. 1984), Pollis v. New School for Social Research

, 132 F.3d 115, 121-23 (2d Cir.

1997) (holding that plaint iff’s statistics did not support an inference of discrimina tion when the

statistical group was comprised of individuals not fairly comparable to the plaintiff), and this Court’s

recent opinion in Wyvill v. United Co. Life Ins. Co. , 212 F.3d 296 (5 th Cir. 2000).

The University, however, fails to mention Plemer

, a Fifth Circuit case almost directly on point.

Moreover, the cases that UTHSCSA cites are inapposite. First, the Fifth Circuit stated in P lemer

,

a case with facts quite similar to those in the instant case, that7 [i]f an employee establishes by statistics that an employer had a

discriminatory practice or policy toward employees of the claimant’s

gender, the court may infer that the employer ’s justification for an

action it took against the plaint iff was merely pretext and that the

action was re ally taken on the basis of the plaintiff’s gender in

conformance with the general practice of discrimination.

713 F.2d at 1137.

Indeed, this Court stated that the district court should have co nsidered the plaintiff’s statistics as

evidence that rebutted the employer’s evidence that the wage disparity between her and another male

employee for the same position hinged on a “factor other than sex.” Id.

Se cond, the study in Z ahorik did not consider discriminatory wage structures, and the

statistics were limit

ed in numbers, remote in time, based upon the statisticians’ “estimates,” and

reflected a deliberate exclusion from consideration of nearly 50 tenure decisions. Th ird, P o llis is

distinguishable from the instant case. The petitioner’s statistics in that case failed because her sample

group was too small, consisting of only eight faculty members, and too spread out over time, covering

the years 1974-1993, to be probative of anything. In contrast, both studies that Siler-Khodr

presented analyzed salary data of hundreds of faculty members, university-wide, during a single year.

Fourth, Wyvill may be distinguished because it did not even involve statistics, but anecdotal evidence

of how other individuals had been treated by the employer.

Furthermore, the Supreme Court has specifically addressed the University’s arguments

regarding the regression analysis in Gray’s report. The Court concluded that “[w]hile the omission

of variables from a regression analysis may render the analysis less probative than it otherwise might

be, it can hardly be said, absent some other infirmity, that an analysis which accounts for the major

factors ‘must be considered unacceptable as evidence of discrimination.’” Bazemore v. Friday

, 4781 For the same reasons, the University’s arguments regarding the issue of whether the trial court

erred by admitting into evidence unreliable and irrelevant statistical evidence and therefore abused

its discretion a nd subst antially prejudiced the University by forcing it to defend allegations of

discrimination against all female faculty in the University, are unpersuasive.

8 U.S. 385, 400 (1986) (citation omitted). “Normally, failure to include variables will a ffect the

analysis’ probativeness, not its admissibility .” I d. (emphasis added). Furtherm ore, the Court stated

that “[a] plaint iff in a Title VII suit need not prove discrimination with scient ific certainty; rather, his

or her burden is to prove discrimination by a preponderance of the evidence.” Id.

Thus, although both reports do not study faculty salaries by medical sub-specialty or study

Pauerstein’s individual conduct, they are sufficient to prove discrimination under a Title VII claim

according to Supreme Court and this Court’s precedent. Moreover, i t i s noteworthy that the

University failed to present evidence at trial rebutting the conclusions of the reports that Siler-Khodr

presented into evidence. In contrast, Siler-Khodr put fo rt h ample evidence to overcome the Rule

50(a) motion, including her testimony, Gray ’s testimony, and the studies themselves. Finally, the

Supreme Court has noted that the inclusion of specific variables does not affect the studies’

probativeness as much as their admissibilit y. Therefore, regarding the studies in favor of SilerKhodr, we hold that the district court did not err in denying the Rule 50(a) motion, given that it is

the province of the jury, not the court, to make credibility determinations regar ding the reports. 1

Reeves , 530 U.S. at 122.

B. Affirmative Defenses

1. Grant-Obtaining Abilities2 He also stated at trial that grants from the National Institutes of Health (“NIH”) are the most

prestigious grants, as they are peer-reviewed.

9 The University offered two affirmative defenses at trial to explain the wage differential alleged

in Siler-Khodr’s EPA and Title VII claims: 1) Sydney was more productive in his abilit y to secure

grants than Siler-Khodr and 2) Pauerstein offered Sydney a higher salary than that of Siler-Khodr as

an incentive to retain his wife, Rochelle, a professor in the department since 1976, based on Sydney’s

prior salary and market forces. With respect to the first affirmative defense, Pauerstein testified at

trial that the single most important criterion he uses to allocate money fo r raises is success in

obtaining grant funding. 2

Siler-Khodr testified at trial that she had brought in $2.8 to $2.9 million in grants over the

course of her tenure at the University as a principal investigator. In contrast, Sydney testified that

he had obtained in excess of $1.9 millio n in grant money to t he University. Pauerstein, however,

testified that the department had attributed $2.9 millio n in grant funding, all from NIH, to Sydney as

a Principal Investigator (“PI”) during the years 1989-1999. During the period 1975-1999, however,

Pauerstein testified that Siler-Khodr o bt ained o nly $600,000 in grant funding as a principal

investigator, all from NIH.

Sydney also testified that although he had not obtained any new grant funding since 1995, he

had received raises since that time. Pauerstein testified that he did not recommend a raise for Sydney

in 1999 because he had been unable to receive a grant. Similarly, Pauerstein testified that he did not

recommend Siler-Khodr for a raise in 1999 because her track record in bringing in grant support was

not “excellent,” although she had obtained grant support for that year. In 1991, however, Pauerstein3 Pauerstein has recommended Siler-Khodr for merit raises in fifteen out of the seventeen years

that raises were a vailable. Between the years 1991 and 2000, Siler-Khodr received raises that

increased her salary by 28.8% and Sydney received raises that increased his salary by 30%.

10 recommended a raise for Siler-Khodr that was over five percent greater than that which he

recommended for Sydney. 3

Sil er-Kho dr argues that the University’s grant-obtaining defense is mere pretext for the

discrepancy

bet ween her and Sydney’s compensation. She notes, in contrast to Pauerstein’s

testimony regarding the importance of obtaining grants in evaluating salary raises, that Dean Young

wrote in a 1996 letter that “[t]here are no institutionally specified factors to consider as a basis for

determining t o t al annual compensation.” Siler-Khodr also contends that the University presented

neither a campus-wide nor departmental policy showing that this factor had ever been used as a wagesetting criterion. Although she was informed in her 1996 and 1997 facult y evaluations that she

needed to improve her abilit y to obtain further grant funding for research studies, there is no evidence

in the record that Siler-Khodr had been criticized in her evalu at io ns for not obtaining sufficient

funding prior to 1996 and 1997. The record also reflects that she had not been informed that she was

paid less because of her purportedly lesser ability to obtain grants.

A review of the record therefore indicates that Siler-Khodr presented sufficient evidence at

trial to support the jury’s finding that the University’s grant-obtaining affirmative defense was pretext

for its paying Siler-Khodr a lower wage than Sydney. We, therefore, hold that the district court did

not err.11

2. Prior Salary/Market Forces

The trial court similarly did not err when it denied the University’s motion for judgment as

a matter of law because the record shows that UTHSCSA’s affirmative defense to Siler-Khodr’s

claims based on Sydne y’s prior salary and market forces is pretext as well and is easily rebutted.

Pauerstein testified that he offered a faculty position to Sydney because he wanted to retain Rochelle

as a member of the Ob/Gyn Department. Sydney t est ified at trial that his primary reason for

accepting employment at the University was that he had tired of the responsibilit ies at his job i n

private industry and he wanted to pursue academic research. Moreover, although he testified that

there were no negotiations regarding his salary offer with the University, he also testified that had his

salary offer not been in excess of $80,000, he probably would have asked for a higher salary. The

trial court, however, did not err when it adjudged that the evidence was legally sufficient to rebut this

affirmative defense because the record reflects that Sy dney’s primary reason for accepting

Pauerstein’s offer was not related to salary.

The University also argues that market forces dictated a higher salary for Sydney. It relies

on the testimony of Dean Young, who stated th at t he wage differential is justified, given that the

salary paid to a new employee is driven almost entirely by market forces- the University must expend

resources to attract qualified individuals in a market where other organizations have the same goal.

This Court has previously stated that the University’s market fo rces argument is not tenable and

simply perpetuates the discrimination that Congress wanted to alleviate when it ena cted the EPA.

See Brennan v. City Stores, Inc. , 479 F.2d 235, 241 n.12 (5 th Cir. 1973) (stating that factors other

than sex such as “the tighter market for salesmen and male tailors” does not justify “its hiring of men

with such skills at a rate higher than that paid to obtain women of similar skills”).4 In 1963, Congress enacted the EPA pursuant to its Commerce Clause powers, and it limited

liabilit y under the EPA to private employers. U ssery v. Louisiana

, 150 F.3d 431, 435 (5 th Cir. 1998)

. In 1974, when Congress amended the EPA to apply to the states, however, it did not provide a

definitive statement regarding the Constitutional authority under which it acted. Id.

12 II. Constitutionality of the EPA

The University asserts that Congress exceeded its aut hority when it abrogated the states’

Eleventh Amendment immunit y in the EPA, in light of the Supreme Court’s recent opinion in Kimel

v. Florida Bd. of Regents , 528 U.S. 62 (2000). K imel held that the Age Discrimination in

Employment Act of 1967 (“ADEA”), 29 U.S .C. § 621, although containing a clear statement of

Congress’s intent to abrogate state immunity, was not a valid exercise of Congress’s power under

§ 5 of the Fourteenth Amendment to abro gat e state immunity and extend liability to the states.

Kimel

, 528 U.S. at 78-80. In addition, UTHSCSA argues that Congress not only unconstitutionally

invoked its authority under Article I t o abro gat e state immunity, but it also lacked authority to

abrogate state immunit

y under § 5 because Congress failed to find widespread constitutional

violations by the states when it amended the EPA to extend liab ility to the states i n 1974. 4 The

University consequently argues that the Act fails the congruence and proportionality test outlined in

City of Boerne v. Flores , 521 U.S. 507, 519-20, 117 S. Ct. 2157, 138 L. Ed. 2d 624 (1997).

This Court reviews de novo the question of whether a state is entitled to immunit y under the

Eleventh Amendment. U ssery

, 150 F.3d at 434. This Court in U ssery explic it ly upheld the

constitutionality

o f t he EPA under the Eleventh Amendment in a similar challenge when it stated,

“[b]y amending the EPA to include the States as employers, Congress sought to eliminat e such

discrimination by the States themselves . . . [and] it goes without saying that the subst ant ive

provisions of the Fourteenth Amendment prohib it t he States from discriminating on the basis of5 Other courts exa mining this issue pre- K imel have agreed with the Fifth Circuit’s holding in

Ussery

. S ee, e.g., Varner v. Illino is State Univ.

, 226 F.3d 927, 935 n.4 (7 th Cir. 2000), cert. denied

, __ S. Ct.__, 2001 WL 121186 ( Jun. 11, 2001) (No. 00-1277).

13 gender.” I d. at 437. Moreover, this Court in U ssery expressly rejected the argume nt that the

University ma kes regarding Congressional reliance on Article I to amend the EPA to include the

states. It stated that “the 1974 Amendment s were a separate statute, and we must examine that

statute and its legislative history to determine if Congress stated its intent to legislate under any

particular constitutional provision.” Id. at 436 n.2. 5

We find that in the wake of Kimel

, the EPA neve rtheless does not vi ol ate the El eventh

Amendment of the Constitution because it is congruent and proportional “between the injury to be

prevented or remedied and the means adopted to that end” and is therefore an appropriate use of

Congress’s § 5 power of the Fourteenth Amendment. C ity of Boerne

, 521 U.S. at 520. K imel held

that the ADEA was not an appropriate use of Congress’s § 5 power because it was not congruent

and proportional to the means employed by the Equal Protecti on Clause to prohibit discrimination

by the states on the basis of age. K imel

, 528 U.S. at 82-86. The Co urt essentially found that the

discriminatory conduct that is prohibited by the ADEA, as applied to the states, is disproportionate

to similar conduct prohibited by the Constitution’s Equal Protection Clause. Id.

The Kimel Court distinguished between state discrimination on the basis of age, which

requires rational review under Equal Protecti on, and state discrimination on the basis of race or

gender, which requires higher standards of review and “a tighter fit between the discriminatory means

and the legitimate ends they serve.” I d. at 84. Importantly, other courts to consider this issue post-6 Similarly, the Court’s recent decision in Board of Trustees of the University of Alabama, et. al.

v. Garrett, et al.

, 121 S. Ct . 955 (2001), supports our hol di ng. The G arrett Court held that the

Americans with Disabilit ies Act (“ADA ”) unconstitutionally abrogates the states’ Eleventh

Amendment immunit

y because 1) discrimination in em p loyment against the disabled is reviewed under

rational basis for purposes of the Equal Protection Clause and 2) the legislative record of the ADA

fails to reveal that Congres s ident ified a pattern of irrational state discrimination. I d. at 963-66.

Here, gender, unlike disabilit y, is reviewed under a stricter test in Equal Protecti on, which the Kimel

Court took pains to address. S ee Kimel

, 528 U.S. at 84. Moreo ver, in contrast to disability, the

historical record clearly documents state discrimination on the basis of gender. Hence, the lack of

further Congressional findings regarding gender dis criminat io n by the states is less significant in

importance.

14 Kimel have been similarly swayed. 6 S ee Varner

, 226 F.3d at 934-35; Hundertmark v. Florida Dept.

of Transp.

, 205 F.3d 1272, 1276-77 (11 th Cir. 2000); Kovacevich

, 224 F.3d at 819-21; Anderson v.

State Univ. of New York , 107 F. Supp. 2d 158, 165 (N.D.N.Y. 2000).

Moreover, although the Kimel Court discussed t he lack of legislative findings regarding

unconstitutional age discrimination by the states, it nonetheless stated “that lack of support is not

determinative o f t he § 5 inquiry .” K imel

, 528 U.S. at 91. Other courts examining the lack of

legislative findings regarding the discriminatory practices by the states on the basis of gender have

f o und t his argument unpersuasive, as the “historical record clearly demonstrates that gender

discrimination is a problem that is national in scope,” whether or not committed in the public sector.

Varner

, 226 F.3d at 935-36; see also Kovacevich

, 224 F.3d at 821 n.6 (stating that “we are satisfied

by Congress’s more general finding in enacting the original EPA that wage differentials are due to

outm oded beliefs about the relative value of men’s and women’s work

. . . combined with the fact

that women have been subjected to a history of purposeful une q ual treatment more generally”

(internal citations omitted)). Thus, we hold that the EPA is constitutional under the Elevent h

Amendment.15 CONCLUSION

We affirm the district court’s denial of UTHSCSA’s motion for judgment as a matter of law

because its judgment was legally suf ficient t o support the jury’s findings of prima facie sex

discrimination under Title VII and unequal pay under the EPA. We also agree with our sister circuits

that the EPA does not violate the Eleventh Amendment of the Constitution in light of the Supreme

Court’s decision in Kimel

.

AFFIRMED.DeMOSS, Circuit Judge, concurring in part and dissenting in part:

I nsofar as the majority opinion affirms the judgment of the

district court an d the jury verdict authorizing recovery against

the University for discrimination under Title VII (42 U.S.C.

§ 2000e et seq.), I reluctantly concur. The holding of the Supreme

Court in Fitzpatrick v. Bitzer

, 427 U.S. 445 (1976), which held

that suits brought in federal court by a private citizen against a

state for recovery of damages pursuant to Title VII were not barred

by the Eleventh Amendment because in adopting the 1972 Amendments

to the Civil Rights Act, Congress expressly acted pursuant to § 5

of the Fourteenth Amendment, i s controlling. While I see

substantial inconsistencies between the Supreme Court’s holding in

Fitzpatrick v. Bitzer and several r ecent Supreme Court cases, I

have not found anything in those recent cases that would overrule

the holding in Fitzpatrick v. Bitzer

, and we are, therefore, bound

by that holding unt il the Supreme Court itself modifies or

overrules it.

As to the portion of the majority opinion that affirms the

district court’s award of money damages based on the jury finding

of a violation of the Equal Pay Act of 1963, Pub. L. No. 88-38, 77

Stat. 56 (codified as amended at 29 U.S.C. § 206(d)), I

respectfully dissent. I write to explain why I believe the17

majority opinion is in error in concluding that, in 1974 when

Congress amended the provisions of the Fair Labor St andards Act

(FLSA) so as to give individual state employees a cause of action

in federal court against a state, Congress relied upon § 5 of the

Fourteenth Amendment.

I. Historical Review

I think a brief historical review of the key statutory

provisions involved in this appeal will be helpful to understanding

my dissent. The Fair Labor Standards Act (codified as amended at

29 U.S.C. §§ 201-219) (hereinafter the FLSA) as originally enacted

in 1938, contained a section defining congressional findings and

declaration of policy (§ 202); a section defining various terms (§

203); a section fixing the minimum wage for various categories of

employees (§ 206); a section defining the maximum number of hours

in a work week and providing for payment at a higher rate for hours

worked in excess of that maximum (§ 207); a section defining child

labor limitatio ns (§ 212); a section defining various exemptions

from coverage (§ 213); a section defining prohibited acts (§ 215);

a section defining penalties and methods of recovery (§ 216); and

a section defining various injunctive proceedings (§ 217). It

should be noted that § 202 is still in place and is an express and

explicit statutory statement by Congress of its findings of adverse

impacts on interstate commerce and its express declaration that it18

was exercising its power to regulate commerce among the states in

order to eliminate these adverse conditions. There is no need

therefore to explore the legislative history of FLSA on the issue

of what constitutional power Congress relied upon in enacting it.

It should also be noted that at the time of its original passage,

the FLSA expressly excluded a state as being within the definition

of “employer” and excluded “state e mployees” as being included

within the definition of employees. It seems absolutely clear to

me, therefore, that at the time of its original enactment, the FLSA

was an exercise of the powers of Congress under the Interstate

Commerce Clause, Article 1 Section 8 of the Un ited States

Constitution.

In 1963, Congress enacted the “Equal Pay Act of 1963”, which

amended 29 U.S.C. § 206 of the FLSA by adding thereto a new

subsection (d). This amendment to § 206 of the FLSA was set forth

in § 3 of the Equal Pay Act of 1963. Section 2 of the Equal Pay

Act of 1963 con tains express findings by Congress that the

existence “of wage differentials based on sex” caused various

negative impacts on industr ies engaged in commerce or in the

production of goods for commerce; and contains an express

declaration by Congress that it was exercising “its power to

regulate commerce among the states” to correc t these adverse

impacts. Just as in the case of the enactment of the FLSA itself,

it seems uncontrovertible to me that in enacting the Equal Pay Act19

of 1963 which added new subsection (d) to § 206 of the FLSA,

C ongress was acting pursuant to its Interstate Commerce Clause

powers to remedy sp ecific adverse effects on interstate commerce

caused by “wage differentials based on sex.” In the House Report

regarding the Equal Pay Act of 1963, the Committee on Education and

Labor makes the following comments as to the purpose and major

provisions of the bill that became the Equal Pay Act of 1963:

The bill (H.R. 6060) would add one additional

fair labor standard to the act; namely, the

employees d oing work should be paid equal wages,

regardless of sex.

Because of the long history and experience of

Government and business and workers wit h the Fair

Labor Standards Act, a simple expansion of that act

to include the equal pay concept offers t he most

efficient and least difficult course of action.

. . . .

Such utilization serves two purposes: First,

it eliminates the need for a new burea ucratic

structure to enforce equal pay legislation; and

second, compliance should be made easier because

both industry and labor have a long-established

familiarity with existing fair labor standards

provisions.

Perhaps the most worthy result in this

approach is in the question of coverage. This bill

neither e xtends nor curtails coverage of the Fair

Labor Standards Act but simply provides that those

employers and employees who are presently covered

by that act shall be covered by the new provisions

relating to equal pay for equal work, regardless of

sex.

H.R. Rep. No. 88-309, at 1-2 (1963), reported in 1963 U.S.C.C.A.N.

687, 687-89.20

The text of new subsection (d) of § 206 expressly provides

that the new equal pay for equal work standard will apply to an

“employer h aving employees subject to any provisions of this

section [§ 206].” As a result, an employer who is not obligated

to pay the minimum wage specified under § 206 is not obligated to

comply with the equal pay for equal work provision. Finally, I

would point out that in 1963 at the time of enactment of the Equal

Pay Act of 1963, under the express terms of the FLSA, the term

“employer” did not include a state and the term “employee” did not

include a state employee.

The final source of congressional action that must be

considered in resolving the issues in this appeal is the Act

entitled “Fair Labor Standards Amendments of 1974” [hereinafter

“1974 Act”], Pub. L. No. 93-259, 88 Stat. 53. The 1974 Act

consists of 29 separate sections covering 25 pages. Section 1 of

the 1974 Act simply provides the name by which the Act may be cited

and states that unless otherwise expressly specified any reference

to an amendment or repeal refers to sections or provisions of the

Fair Labor Standards Act of 1938 (29 U.S.C. §§ 201-219). Section

29 of the 1974 Act provides for effective date and implementation

by the Secretary of Labor. Section 28 of the 1974 Act makes

various amendments to the text of the Age Discrimination in

Employment Act of 1967, 29 U.S.C. § 630 et seq. These changes in

§ 28 are the source of the controversies in the Supre me Court’s21

recent decision in Kimel v. Florida Board of Regents

, 528 U.S. 62.

Section 2 through § 27, therefore, are the portions of the 1974 Act

that make changes in and additions to the Fair Labor Standards Act

of 1938. The most relevant changes to our decision here in S ilerKhodr are:

(a) Section 6(a)(1) of the 1974 Act which made various

changes to the statutory definitions in § 203 of the FLSA

so as to: (1) include a new defined term of “public

agenc y” which includes “a state or a political

subdivision of a state”; (2) amends the term “employer”

to include “a public agency”; and (3) defines the term

“employee” to incl ude “an employee of a public agency

except those who are covered by civil service or who hold

a public elective office.”

(b) Section 6(d)(1) of the 1974 Act which ch anges the

second sentence of § 16(b) [29 U.S.C. § 216(b)] to read

as follows:

Action to recover such liability may be

maintained against any employer

(including a public agency) in any

Federal or State court of competent

jurisdiction by any one or more employees

for and in behalf of himself or

themselves and other employees similarly

situated.

This change was made to satisfy the holdin g of the

Supreme Court in Employees of the Department of Health of

Missouri v. Missouri , 93 S. Ct. 1614, which was decided22

in April 1973, just about one year prior to the issuance

of the committee report. In this suit, various employees

of the State of Missouri’s health facilities and agencies

brought suit in the federal district court for overtime

pay due them under § 16(b) of the FLSA. The district

court dismissed the suit as being an unconsented action

against the State of Missouri barred by the Eleventh

Amendment, and the Court of App eals affirmed. The

Supreme Court held that although amendments to the FLSA

in 1966 extended statutory coverage to state employees in

hospitals, th e legislative history failed to show a

c ongressional purpose to deprive the state o f its

constitutional immunity to suit in a federal fo rum by

employees of its non-profit institutions because § 16(b)

of the FLSA as it existed at that time did not expressly

authorize suit by a state employee against the state in

federal court. This amendment to § 16(b) of FLSA

satisfies one of the grounds upon which the Supreme Court

in Employees v. Missouri held that “Congress did not lift

th e sovereign immunity of the states under the FLSA.”

But even so, some other statements by the Employees Court

are worth noting, as follows:

Where employees in state institutions not

conducted for profit have such a relation to

interstate commerce that national policy, of which

Congress is the keeper, indicates that their status23 s hould be raised, Congress can act. And when

Con gress does act, it may place new or even

enormous fiscal burdens on the States . Congress

acting responsibly would not be presumed t o take

such action silently....

But we have found not a word in the history of

the 1966 amendments to indicate a purpose of

Congress to make it possible for a citizen of that

State or another State to sue the St ate in the

federal courts....It is not easy to infer t h at

Congress in legislating pursuant to the Commerce

Clause, which has grown to vast proportions in its

applications, desired silently to deprive the

States of an immunity they have long enjoyed under

another part of the Constitution....

... In this connection, it i s not amiss to

note that § 16(b) allows recovery by

employees, not only of the amoun t of unpaid

wages b ut of an equal amount as liquidated

damages and attorneys’ fees. It is one thing,

as in Parden , to make a state employee whole;

it is quite another to let him recover double

against a State. Recalcitrant private

employers may be whipped into line in that

manner. But we are reluctant to believe that

Congress in pursuit of a harmonious federalism

desired to treat the States so harshly.

93 S. Ct. at 1618-19.

(c) In § 7 of the 1974 Act, various changes in sections

of the FLSA were made in order to bring “domestic service

workers” under the provisions of that Act. Of these

changes the most significant to our current analysis is

the change made by § 7(a) of the 1974 Act, which inserts

the follow ing new sentence in § 202(a) of the FLSA:

“That Congress further finds that the employment of

persons in domestic service in households affects24

commerce. ” This change clearly indicates to me that

Congress th ought about the subject, and the basis of

authority, of what changes, if any, it needed to make in

§ 202 of the FLSA, the section that sets forth its

statements of effects on interstate commerce justifying

its exercise of the power to regulate commerce.

While it is true that the 1974 Act, unlike the FLSA and the

Equal Pay Act of 1963, does not contain express and explicit

language regarding impacts on interstate commerce and that the Act

was an exercise of the interstate commerce power, I think it is

sheer speculation to conclude as the panel majority does, and as

the panel in Ussery v. Louisiana 150 F.3d 431 (5th Cir. 1998) did,

that Congress acted on the basis of some other power in enacting

the 1974 Act. In the first place, as mentioned earlier, the

amend ment of § 202 of the FLSA relating to the inclusion of

domestic service workers under the FLSA, clearly indicates that

Congress continued to believe that its authority for the adoption

of the FLSA was its interstate commerce power. But equally, if not

more persuasive, is the fact that the House Education and Labor

Committee Report specifically indic ates that Congress was acting

under its interstate commerce power. S ee H.R. Rep. No. 93-913

(1974), r eprinted in 1974 U.S.C.C.A.N. 2811. In the opening

paragraph of this report, the Committee quoted verbatim § 202 of

the FLSA to indicate the basic policy of the FLSA. The Committee25

report then states under the heading “Purpose of the Legislation”

as follows:

The bill seeks to implement the policy of the Act

[the FLSA] by (1) providing an increase in the

minimum wage rate, and (2) exten ding the benefits

and protection of the Act to workers enga ged in

commerce, or in the production of goods for

commerce or employed in enterprises engaged in

c ommerce or in the production of goods fo r

commerce.

Id. Later on in this same section of the Committee report, there

is a very cursory reference: “The bill extends the minimum wage and

overtime coverage of the Act to Federal, State and local government

employees....” I d

. Later on in the report in a section-by-section

discussion of the main provisions of the bill, the report states:

Sec. 6 . Federal and State Employees. -- Amends

definitions of the act to permit t he extension of

minimum wage and overtime coverage to Federal,

State, and local public employees.

Id

. Later on in this report, there is a two-page discussion of § 6

of the bill, which would extend “minimum wage and overtime coverage

to about five million nonsupervisory employees in the public sector

not now covered by the Act.” I d

. In this discussion, there is no

specific reference to the “equal pay for equal work” provisions of

subsection (d) of § 206; there is no reference to “discrimination

on the basis of sex” by the states against their employees; there

is no reference to unconstitutional state laws th at foster

discrimination in pay on the basis of sex ; there is no reference26

to states denying equal protection of the laws because of wage

rates differing on the ba sis of sex; and finally there is no

discussion or findi ng by the Committee that pay differentials on

the basis of sex between workers doing the same job for the states

requires exercise by the Congress of it s powers under § 5 of the

Fourteenth Amendment. There is a lengthy portion of this report

which constitutes an overview of the history of the FLSA and

various Supreme Court decisions relating thereto. Since this

committee report was issued in March 1974, it is not surprising

that this historical review of the Act and Supreme Court decisions

generally arrives at the conclusion that the Congress has the power

under the Interstate Commerce Clause to make the extension of the

Fair Labor Standards Act to state employees as contemplated by the

1974 Act. This discussion focused primarily on the Supreme Court

decision in M

aryland v. Wertz

, 88 S. Ct. 2017 (1968). One of the

issues involved in Wertz was whether or not the state’s sovereign

immunity was abrogated by certain amendments made in 1966 that

extended wage and hour coverage to employees of hospitals, mental

institutions, schools, and institutions of higher education

regardless of whether these institutions were public or private or

operated for profit or not for profit. While affirming the lower

court’s decision not to enjoin enforcement of these provisions, the

Supreme Court in Wertz expressly reserved for later determination27

all questions of the state’s sovereign immunity from suit

guaranteed by the Eleventh Amendment.

I n light of the foregoing, I come to the following

conclusions:

1. In adopting the FLSA and the Equal Pay Act of 1963,

Congress expressly and explicitly, in the statutes th emselves,

relied upon its powers under the Interstate Commerce Clause of the

Constitution.

2. In passing the 19 74 Act, Congress acted under its

authority under the Interstate Commerce Clause. While this

conclusion is not as express and as explicit as that regarding the

FLSA and the Equal Pay Act of 1963, there is overwhelming evidence

upon which to draw such a conclusion, and there is no evidence that

would support a contrary conclusion.

3. From my review of the statutory language in each of these

legislative enactments and their respective legislative histories,

I can see absolutely no basis for treating the provisions of

§ 206(d) separately and apart from the remainder of the Fair Labor

Standards Act for purposes of determining the constitutional power

upon which Congress purported to act.

I disagree completely with my colleagues in the majority who

relied upon the prior opinion of this Court in Ussery

, which relied

upon prior opinions of other Circui t Courts, in attributing some

sort of separate standing to the Equal Pay Act for purposes of28

determining its constitutionality. Once the bill which was labeled

as the Equal Pay Act of 1963 was pass ed and its substantive

amendment to § 206(d) incorporated in the U.S. Code, it became for

all purposes and intents a portion of the Fair Labor Standards Act

just as though it had been in the origi nal Act. In truth and in

fact, the provisions of subse ction (d) of § 206 could not be

applied in any case without simultaneous reference to the other

subsections of § 206, the definitions in § 203, the exemptions in

§ 213, and the remedies available in § 216.

II. The Impact of Seminole Tribe

No satisfactory disposition of the case now before us can be

accomplished without giving full application to the decision of the

Supreme Court in Seminole Tribe of Florida v. Florida , 116 S. Ct.

1114 (1996). In S eminole Tribe

, the Supreme Court made two

holdings that control in this case. First and foremost, the

Supreme Court overruled its prior decision in Pennsylvania v. Union

Gas Co.

, 109 S. Ct. 2273, in which a plurality of the Supreme Court

held that Congress had the power under the Interstate Commerce

Clause to abrogate the immunity that a State claims under the

Eleventh Amendment from suits by private individuals for money

damages. After stating “[w]e feel bound to conclude that U nion Gas

was wrongly decided and that it should be, and now is, overruled,”

the Court went on to state:29 [W]e reconfirm that the background principle

of state sovereign immunity embodied in the

Eleventh Amendment is not so ephe meral as to

dissipate when the subject of the suit is an area,

like the regulation of Indian commerce, that is

under the exclusive control of the Federal

Government....The Eleventh Amendment restricts the

j udicial power under Article III, and Art icle I

cannot be used to circumvent the constitutional

limitations placed up on federal jurisdiction.

Petitioner’s suit against the State of Florida must

be dismissed for a lack of jurisdiction.

Seimole Tribe

, 116 S. Ct. at 1131-32. The Act in question in this

case was the Indian Gaming Regulatory Act, which imposed upon the

states a duty to negoti ate in good faith with an Indian tribe

toward the formation of a compact and authorized a tribe to bring

suit in federal court against a state in order to compel

performance of that duty. The Supreme Court determined that the

language of the Act was sufficient to indicate Congress’ clear

intent to abrogate the state’s sovereign immunity; notwithstanding

that det ermination, the Court concluded that the Indian Commerce

Clause of the Constitution does not grant Congress that power.

After making the “intention” determination, the Supreme Court said

its inquiry was focused on one question: “Was the Act in question

passed pursuant to a constitutional provision granting Congress the

power to abrogate?” Id . at 1125.

In my view, this precise question rephrased to fit the

circumstances of this case is the determinative issue for this

Court. That question is “Was the 1974 Act passed pursuant to a30

constitutional provision granting Congress the power to abrogate?”

That question involves two subordinate questions as follows:

a. Under what provision of the Constitution was the 1974 Act

passed; and

b. Does that constitutional provision grant Congress the

power to abrogate the state’s Eleventh Amendment immu nity from

suit?

For the reasons stated earlier in this dissent, I have no

trouble at all concluding that the 1974 Act was passed pursuant to

Congress’ powers under the Interstate Commerce Clause. And in my

view, the answer to the second subquestion is controlled by

Seminole Tribe a nd must be “no”. Answers to these questions are

strictly factual determinations to be made on the basis of the

statutory text and the legislative history as of the time of

“passage” or “enactment” of the Act in question. I make this point

expressly because I disagree with the panel majority’s reliance on

our prior decision in Ussery

, which relied on an Eighth Circuit

case and stated:

Seminole Tribe “requir es us to make an objective

inquiry, namely whether Congress could have enacted

the legislation at issue pursuant to a

constitutional provision granting it the power to

abrogate.” (Emphasis added.)

150 F.3d at 436 (quoting Crawford v. Davis

, 109 F.3d 1281, 1283

(8th Cir. 1997). But this “could of, would of, should of” concept

is totally inconsistent with the language of Seminole Tribe . The31

question pos ed in S eminole Tribe does not say “could the Act in

question have been passed pursuant to any constitutional provision

granting Congress the power to abrogate”? In Seminole Tribe , the

S upreme Court determined that the Act in question (the Ind ian

Gaming Regulatory Act) was passed pursuant to the const itutional

provision authorizing Congress to “regulate commerce with Indian

tribes,” but that “Congress does not have the authority under the

Constitution to make the State suable in federal court....” 116 S.

Ct. at 1133. Furthermore, the Court in Seminole Tribe went on to

state:

Nor are we free to rewrite the statutory scheme in

order to approxima te what we think Congress might

have wanted had it known that § 2710(d)(7) was

beyond its authority . If that effort is to be

made, it should be made by Congress, and not by the

federal courts.

Id . The majority opinion in Seminole Tribe does not get into any

speculation as to whether § 5 of the Fourteenth Amendment could

have provi ded the constitutional authority for the abrogation of

states’ Eleventh Amendment immunity which Congress proposed in the

Indian Gaming Regulatory Act. I think that it is a mistake and an

erroneous application of Supreme Court precedent for the majority

to go through the convoluted, semantical speculations as set forth

in their opinion to come up with their conclusion that § 5 of the

Fourteenth Amendment supports the abrogation of state immunity from

private suits for money damages insofar as claims under 29 U.S.C.

§ 206(d) are concerned. Accordingly, I would vacate the portions32

of the judgment awarding damages under the Equal Pay Act.