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Sulton v. Board of Regents of University of Wisconsin System

United States District Court, E.D. Wisconsin

March 2, 2017

DR. ANNE T. SULTON, Plaintiff,
v.
BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM and SUSAN TAKATA, Defendants.

          DECISION AND ORDER

          LYNN ADELMAN District Judge

         Plaintiff 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 dismissed.

         I. BACKGROUND

         According 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.

         On 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:

         Dear applicant:

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.

         On 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.

         Defendants 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.

         On 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.

         In 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.

         II. ...


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