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Hicks v. The Board of Trustees of University of Alabama

United States District Court, M.D. Alabama, Northern Division

April 18, 2018

CEDRIC HICKS, Plaintiff,
v.
THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ALABAMA, Defendant.

          MEMORANDUM OPINION AND ORDER

          GRAY M. BORDEN UNITED STATES MAGISTRATE JUDGE.

         On October 25, 2017, Plaintiff Cedric Hicks filed a complaint against Defendant The Board of Trustees of The University of Alabama (the “Board”), alleging discrimination and retaliation based on his race, color, national origin, sex, age, and participation in protected activity. Doc. 1. On December 12, 2017, the Board moved to dismiss Count V of the complaint based on Eleventh Amendment immunity. Doc. 5. Having reviewed the Board's motion, the parties' briefs, and the relevant legal authority, and for the reasons that follow, the court finds that the Board's motion is due to be

         GRANTED.[1]

         I. STATEMENT OF FACTS

         Although Hick's complaint spans 28 pages, it is unnecessary for the court to set forth a lengthy statement of facts, as there is only one discrete issue currently before it- whether the Board is immune from Hick's § 1983 equal protection claims under the Eleventh Amendment. Accordingly, the court will set forth only those facts that are relevant and necessary to resolve this particular issue.

         On October 25, 2017, Hicks filed a complaint against a single defendant-the Board[2]-asserting various claims of discrimination and retaliation based on his race, national origin, color, sex, age, and participation in prior protected activity. Doc. 1. One of Hicks' claims against the Board is entitled “Equal Protection of the Law USCS Constitutional Amendment 14 to the United States Constitution UAB (Violation of the 14th Amendment to the United States Constitution).” Doc. 1 at 25-26. The substance of that claim, identified as Count V of the complaint, consists of the following:

Defendants[3] have denied the Plaintiff equal protection of the law in violation of USCS Const. Amend. 14, by refusing to grant him equal employment opportunity and discriminating against him based on his race, and sex, Black and Male, Age over 40, Retaliation prior complaints of discriminatory conduct, and national origin African American. Defendants are in violation of this law by their continued constructive termination of the Plaintiff based on his race, age, national origin and sex, and continuing to enforce the unfair constructive discharge of the Plaintiff based on discrimination and retaliation for his protected prior activity. There was a systematic pattern of racial bias, oppression and disrespect that forced Plaintiff to submit his letter of resignation on March 2nd, leading to his constructive discharge on April 2, 2016.

         Doc. 1 at ¶ 111. In other words, from a review of this claim, it appears that Hicks is asserting a claim against the Board for denying him equal protection of the laws in his employment based on his race, sex, age, and national origin in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. It further appears that Hicks is attempting to assert an additional equal protection claim against the Board for retaliating against him for participating in prior protected activity, also in violation of the Fourteenth Amendment to the United States Constitution.[4]

         On December 12, 2017, the Board filed a limited answer to Hicks' complaint along with a partial motion to dismiss. Docs. 5 & 6. In its motion to dismiss, the Board argues that Hicks' equal protection discrimination claim, as alleged in Count V of the complaint, is due to be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1) based on Eleventh Amendment immunity. Doc. 5. The Board further argues that equal protection retaliation claims are not cognizable under the Fourteenth Amendment, and therefore to the extent Hicks is attempting to assert such a claim against it, that claim is also due to be dismissed as a matter of law. Doc. 5. Hicks filed a response in opposition to the Board's motion to dismiss on January 15, 2018, and a few days later, the Board filed its reply. Docs. 14 & 17. The motion is now fully briefed and ripe for resolution by the court.

         II. DISCUSSION

         Title 42 U.S.C. § 1983 imposes liability on any person who, under color of state law, deprives any citizen of the United States “of any rights, privileges, or immunities secured by the Constitution and laws[.]” 42 U.S.C. § 1983. Although Hicks' complaint does not specifically invoke § 1983, because the Fourteenth Amendment does not contain a private right of action, “it is only via the statutory vehicle of . . . § 1983 that a plaintiff may seek to vindicate his 14th Amendment rights.” McBride v. Murray, 2006 WL 734542, at *2 (N.D.Ga. Mar. 17, 2006) (citing BellSouth Telecomms., Inc. v. MCImetro Access Transmission, 317 F.3d 1270, 1296 (11th Cir. 2003)). Therefore, the court assumes that Hicks' equal protection claims are brought pursuant to § 1983 even though this statute is not referenced in the complaint.

         The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend XI. “The Supreme Court has extended Eleventh Amendment immunity to prevent suits in federal court against a state by its own citizens.” Brown v. Fla. Dep't of Revenue Office of Child Support Enforcement, 697 Fed.Appx. 692, 692 (11th Cir. 2017) (citing Abusaid v. Hillsborough Cnty. Bd. of Cnty. Comm'rs, 405 F.3d 1298, 1303 (11th Cir. 2005)). “The Eleventh Amendment provides immunity for a state's agencies as well.” Id. (citing Miccosukee Tribe of Indians v. Fla. State Athletic Comm'n, 226 F.3d 1226, 1231 (11th Cir. 2000)). Finally, state universities in Alabama, including the University of Alabama Board of Trustees, are considered arms of the state, and thus, are entitled to Eleventh Amendment immunity. Harris v. Bd. of Trustees Univ. of Ala., 846 F.Supp.2d 1223, 1233 (N.D. Ala. 2012) (citing Harden v. Adams, 760 F.3d 1158, 1163 (11th Cir. 1985); and Davis v. Ala. State Univ., 613 F.Supp. 134, 139-40 (M.D. Ala. 1985)); see also Eubank v. Leslie, 210 Fed.Appx. 837, 844-45 (11th Cir. 2006).

         There are exceptions to Eleventh Amendment immunity, however.

First, Congress can abrogate eleventh amendment immunity without the state's consent when it acts pursuant to the enforcement provisions of section 5 of the fourteenth amendment. Second, a state may waive its immunity expressly through legislative enactment. “[I]n the absence of consent[, ] a suit in which the State or one of its agencies ...

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