United States District Court, E.D. Wisconsin
DR. ANNE T. SULTON, Plaintiff,
BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM and SUSAN TAKATA, Defendants.
DECISION AND ORDER
ADELMAN District Judge
Anne T. Sulton alleges that she was denied employment at the
University of Wisconsin - Parkside (“UWP”) based
on her race in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et. seq., and also
42 U.S.C. § 1981. She also alleges a claim under 42
U.S.C. § 1983 for alleged violations of her rights under
the Equal Protection Clause of the Fourteenth Amendment.
Finally, she alleges a claim under the Age Discrimination in
Employment Act of 1967, 29 U.S.C. § 621 et.
seq. (“ADEA”). Before me now is the
defendants' partial motion to dismiss for failure to
state a claim upon which relief can be granted. See
Fed. R. Civ. P. 12(b)(6). The defendants seek dismissal of
the plaintiff's ADEA claim based on sovereign immunity.
They further contend that the ADEA precludes a
Fourteenth-Amendment age-discrimination claim under §
1983 and that, in any event, the plaintiff has not
sufficiently pleaded such a claim. The Plaintiff concedes her
ADEA claim, so I need only determine whether Plaintiff's
Fourteenth-Amendment age-discrimination claim must also be
to the allegations of the plaintiff's first amended
complaint, on October 27, 2013, the plaintiff responded to a
UWP job advertisement for a “one-year terminal
appointment as a Lecturer, ” with a minimal requirement
of completion of all requirements for a Ph.D., except the
dissertation. In her response to the job advertisement, the
plaintiff noted that she has a Ph.D. and a law degree, and
that she would be interested in the one-year appointment. Am.
Compl. ¶ 8-9. By December 18, 2013, all of the
application materials had been submitted.
January 16, 2014, Susan Takata, serving as the “Interim
Department Chair, Search and Screen Committee Chair” at
UWP, wrote an e-mail to Plaintiff which stated:
Thank you for applying to the University of
Wisconsin-Parkside for the position of Associate/Assistant
Professor of Criminal Justice. We have completed the initial
screening of applications and have reviewed your resume
against our current requirements. At this time I am sorry to
inform you that you do not meet the minimum qualifications
for the position. Thank you for your interest in the
University of Wisconsin-Parkside. I wish you well in your
search and career.
Respectfully, Dr. Susan Takata, Professor Interim Department
Chair Search and Screen Committee Chair
Am. Compl. ¶ 13. On January 16, 2014, plaintiff replied
to Takata asking, “[W]hy do [I] not meet the minimum
qualifications for the faculty position? [P]lease send me the
forms I need to complete to file a formal complaint.”
Am. Compl. ¶ 14.
January 29, 2014, at 11:36 AM, the Human Resources Manager
sent plaintiff an e-mail stating that she had one week to
reapply, but set the date by which she needed to submit
additional materials as January 31, 2014. Am. Compl ¶
15. On March 15, 2014, plaintiff filed an employment
discrimination complaint with the Wisconsin Equal Rights
Division and EEOC regarding the aforementioned issues,
specifically concerning alleged discrimination and
retaliation practiced by the defendants. Am. Compl. ¶
16. In response, the defendants claimed that the
plaintiff's application had been denied because she
failed to submit teaching evaluations, she did not qualify
for appointment at the associate professor rank, her course
syllabi did not cover race/crime, and because UW-Parkside was
searching “for a professor, suitable for tenure, who
professed a long-term commitment to UW-Parkside.” Am.
Compl. ¶ 17- 20.
selected Karin Miofsky, a white woman, to teach at the
assistant professor rank. Miofsky is decades younger than the
plaintiff, has published fewer books and articles than the
plaintiff, and has taught at the university level and
practiced in this field of study for less time than the
plaintiff. Am. Compl. ¶ 22-24.
March 12, 2016, the plaintiff filed a complaint for
employment discrimination with this court. On April 5, 2016,
the defendants filed a motion to dismiss for failure to state
a claim upon which relief can be granted pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. In their
brief in support of the motion, the defendants argued that
state entities are immune from ADEA claims, that state actors
and those acting in their official capacities cannot be sued
pursuant to 42 U.S.C. § 1981, and that the
plaintiff's retaliation claims must be dismissed.
response to the defendant's motion to dismiss, the
plaintiff filed an amended complaint, thus mooting the motion
to dismiss. Plaintiff's amended complaint now names the
Board of Regents of the University of Wisconsin System and
Susan Takata, in her individual capacity, as defendants. The
defendants filed a renewed motion to dismiss for failure to
state a claim, arguing this time that the ADEA claim must be
dismissed on the ground that the State of Wisconsin's
sovereign immunity extends to its agencies and arms,
including the Board of Regents. Plaintiff has conceded that
the Board of Regents is immune from suit under the ADEA but
argues that she may still pursue age-discrimination claims
under the Equal Protection Clause of the Fourteenth
Amendment. Defendants disagree, and further contend that the
plaintiff's complaint only alleges race discrimination
under the Equal Protection Clause.