United States District Court, S.D. Alabama, Southern Division
CHRISTINE J. WILLIAMS, Plaintiff,
POARCH BAND OF CREEK INDIANS, Defendant.
REPORT AND RECOMMENDATION
BERT W. MILLING, Jr., Magistrate Judge.
This action is before the Court on Plaintiff's Complaint (Doc. 5), Defendant's Motion to Dismiss and supporting brief (Doc. 10), Plaintiff's Response to said Motion, (Doc. 14), Defendant's Reply Brief and Supplemental Authority (Docs. 15, 20), and Plaintiff's Supplemental Authority. (Doc. 21). Upon consideration and for the reasons set forth herein, it is recommended that Defendant's Motion to Dismiss be granted, and Plaintiff's Complaint be dismissed for lack of subject matter jurisdiction.
I. Facts and Proceedings
Plaintiff Christine Williams is a former employee of the Poarch Band of Creek Indians ("PBCI"). Her Complaint, (Doc. 5),  asserts claims of "violations of civil rights (age discrimination) and year of service disparate treatment." (Doc. 5 at 3). Prior to filing suit, Plaintiff was the lab manager/chief medical technologist within the PBCI Health Department. (Docs. 1, 11-1 at 1, 2). The PBCI Health Department is a Tribal Department located on PBCI Reservation Lands, and positions within the Health Department are Tribal government jobs. (Doc. 11-1 at 2). All employees of the Health Department, including Plaintiff during her employment, are considered PBCI employees. ( Id. ).
Plaintiff is over the age of fifty-five and has been employed with the Health Department for over 21 years. (Doc. 1 at 3). Plaintiff's employment was terminated on June 17, 2014, which she alleges was on the basis of age discrimination. (Doc. 5). Plaintiff contends that Health Administrator Ginger Bergeron and Tribal Administrator Edie Jackson conspired to replace Plaintiff with a twenty-eight year old female medical laboratory scientist, whom Plaintiff contends is under-qualified for the lab manager position. ( Id. at 3). Plaintiff also contends that during the termination process, that Ginger Bergeron, Edie Jackson and Susan Spurill stated to her, "if I did not resign that the plaintiff would not be able to find a job as a lab manager due to plaintiff's age." ( Id. ). This statement is the basis for Plaintiff's allegation that Bergeron, Jackson and Spurill conspired against her due to her age.
In response to Plaintiff's Complaint, Defendant filed its Motion to Dismiss and supporting brief raising the issue of subject matter jurisdiction due to the fact that PBCI is a federally recognized Indian tribe with a governmental structure independent from the United States government and which operates under the PBCI Tribal Constitution and the Tribal Code of PBCI, both of which explicitly preserve PBCI's right to tribal sovereign immunity. (Docs. 10, 11 at 2). Consequently, Defendant contends that absent congressional authorization or waiver, PBCI is entitled to tribal sovereign immunity. Defendant relies on multiple cases which cite to the conclusion that Indian tribes are domestic dependent nations that exercise inherent sovereign authority, and, absent congressional authorization or waiver, the doctrine of tribal immunity is well settled, and suits against a tribe are due to be dismissed due to lack of subject matter jurisdiction. (Doc. 11 at 5).
Defendant further contends that because the Age Discrimination Employment Act ("ADEA") does not abrogate the doctrine of tribal sovereign immunity, PBCI maintains its immunity rendering this Court powerless to hear Plaintiff's Complaint. ( Id. at 7). Additionally, Defendant contends that not only is congressional authorization or waiver lacking, but the ADEA is silent with respect to allegations addressing congressional authorization of private lawsuits under the ADEA, which silence must be construed in PBCI's favor. ( Id. ). Defendant cites to multiple courts, including courts in this Circuit, which have dismissed similar claims due to such tribal sovereign immunity. ( Id. at 8). Defendant contends that the proper forum for Plaintiff's allegations, if anywhere, is before the Tribal Employment Rights Office. ( Id. at 14). The Tribal Employment Rights Code provides PBCI employees with an administrative procedure and remedy to challenge employment practices, and the right to an appeal. ( Id. at 14, 15).
Plaintiff filed a "Brief For Motion to Proceed, " which the Court treats as a Response to Defendant's Motion. (Doc. 14). Plaintiff begins her rebuttal by characterizing Defendant's jurisdiction issues as a request for abstention, and states that such request should be denied because "federal courts have a virtually unflagging obligation to exercise the jurisdiction given them... [and] it is not for the courts to withdraw that jurisdiction which Congress expressly granted under section 1983 where such a withdrawal is contrary to the purpose of Congress in extending [an] alternative forum." ( Id. at 6-7). The Court notes that Defendant did not raise an abstention issue, but rather lack of jurisdiction, and thus, abstention will not be addressed herein.
Next, Plaintiff's response states that because the "United States Supreme Court [has] determined that a state court has no jurisdiction over a claim against an Indian tribe when the claim arises on Indian land, " and because this is a federal case, that Plaintiff has the right to sue in federal court. (Doc. 14 at 7). Plaintiff further contends that because the lab was inspected every two years by a federal government compliance program under the Clinical Laboratory Improvement Amendments of 1988 ("CLIA"), and because the "inspections were performed by the federal government[, then] the federal government has jurisdiction over the [PBCI] lab... If the federal government had jurisdiction during these inspections, they also should have jurisdiction over this age discrimination case." ( Id. at 7-8).
Lastly, Plaintiff contends that "silence is golden" and where a conflict of law exists, a case-by-case analysis is required. ( Id. at 8). Plaintiff provides no case law for this contention, but nonetheless concludes that because "Congress did not lean to the right or left on tribal sovereign immunity[, so] the federal courts have the right to final jurisdiction." ( Id. ). Plaintiff also makes the unsupported conclusion that this Court has jurisdiction because the "ADEA does authorize private lawsuits against federally recognized Indian tribes due to silence." ( Id. ).
Defendant responds pointing out that any abstention arguments by Plaintiff are without merit; the Court agrees. (Doc. 15 at 2). Defendant addresses the "silence is golden" argument by stating that silence operates as evidence that Congressional abrogation or waiver of PBCI's tribal sovereign immunity does not exist, and therefore, PBCI is immune from an ADEA suit, and this Court lacks subject matter jurisdiction over such. ( Id. ). Defendant notes that Plaintiff has provided no evidence of express and unequivocal abrogation of tribal sovereign immunity in relation to her ADEA claim. Defendant also notes that Plaintiff admits Congress is silent on the abrogation issue, and relies on cases from this Circuit and others which rule that silence does not equal abrogation. ( Id. at 3-4).
Finally, Defendant proposes that Plaintiff's claim is proper, if anywhere, before the Tribal Employment Rights Office ("TERO"). ( Id. at 6). That proposition is based on the Tribal Employee Rights Code stating that "any Tribal Employee... who believes that an Employer... has violated rights protected by this Title may file a written complaint with [TERO]." ( Id. ). Defendant relies on the assertions of affiant Edie Jackson attesting to the fact that Plaintiff is a tribal employee and the PBCI Health Department is a Tribal Government Department, which Plaintiff does not dispute. ( Id. at 6-7).
Subsequent to filing its Reply, Defendant PBCI requested leave to file supplemental authority, which was rendered by the Second Circuit shortly after the close of briefing and which is strikingly analogous to the set of facts at hand. (Doc. 18). The Court granted Defendant's request and Defendant filed its supplement. (Doc. 20). The Second Circuit affirmed the district court's dismissal pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure of a pro se plaintiff's discriminatory charge brought under Title VII of the Civil Rights Act and the Age Discrimination in Employment Act against the Mohegan Sun Casino, a gaming center owned and operated by the Mohegan Indian Tribe. (Doc 18 at 2). In affirming the lower court's decision, the Second Circuit held tribunal sovereign immunity barred the plaintiff's ADEA claim. Tremblay v. Mohegan Sun Casino, 599 Fed.Appx. 25 (2d Cir. 2010).
Plaintiff then filed her own Motion to Submit Supplemental Authority, which was also granted. (Doc. 21, docket entry 22). Plaintiff relies on a case out of the Eastern District of Wisconsin wherein the Equal Employment Opportunity Commission filed an action to enforce a subpoena it served pursuant to the ADEA on the Forest County Potawatomi Community ("the tribe") in its capacity as proprietor of Potawatomi Bingo Casino. EEOC v. Forest County Potawatomi Cmty, 2014 WL 1795137 (E.D. Wis. May 6, 2014). The Court in Potawatomi found that the ADEA did apply to the Tribe because the facts therein did not touch on the Tribe's right to self-governance in purely intramural matters; however, that Court also noted that at least three other circuits found that the ADEA did not apply ...