United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER
M. BORDEN UNITED STATES MAGISTRATE JUDGE.
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
STATEMENT OF FACTS
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.
October 25, 2017, Hicks filed a complaint against a single
defendant-the Board-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
Defendants 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.
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
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.
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.
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).
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